Consultation
Immigration Act Review: Cabinet Paper
Rationale for the proposals in this paper
Significant global changes have taken place since the 1987 Act was enacted. There are greater flows of people around the world and greater competition for skills, talent, and labour. There are heightened risks and pressures on the border. New Zealand needs to adapt to these changes to ensure that the best outcomes for the country are realised. Relevant, flexible and responsive legislation is an important tool to help achieve this.
The Immigration Act review proposals are particularly focused on:
- facilitating the entry and stay of people who meet New Zealand's needs, and
- managing risks in a fair and balanced manner.
The proposals retain many of the core elements of the 1987 Act such as requiring non-citizens to have authorisation to be in New Zealand, a role for the Minister in individual decision-making, and an independent appeals system. In all cases the proposals are focused on creating a system that is more transparent and easier to use, and more efficient and flexible, while maintaining an appropriate level of fairness.
Visas
The current visa and permit system is fundamentally sound but technically complicated and somewhat inflexible. The proposed new visa system would be more simple and transparent, and would provide for more flexible levels of scrutiny and control.
Trans Tasman Travel Arrangement
Freedom of movement under the Trans Tasman Travel Arrangement, is a very significant element in New Zealand's relationship with Australia, underlining the essential people-to-people nature of the broader relationship and underpinning economic growth under the Australia-New Zealand Closer Economic Relations Trade Agreement. Although it is recommended that Australians, like all non-citizens, be brought under the proposed visa system, (they are currently exempted from the requirement to hold a visa or permit), there would be no change in substance to their present ability to travel freely to and stay indefinitely in New Zealand. Australians would not be subject to any actual additional administrative requirements, such as completing visa application forms. The process at the border, in most cases, would be automatic and invisible. This system would be similar to Australia's use of the Special Category Visa granted on arrival to New Zealand citizens entering Australia.
Decision-making
Changes are proposed to the statutory immigration decision-making rules, for example, to enable the Minister to delegate the ability to exercise positive discretion in residence decision-making, and to facilitate electronic decision-making. This would provide for more responsiveness and efficiency in the system.
International protection
A new protection regime is proposed that would ensure that all core immigration-related international conventions are provided for in domestic legislation and would require all claims for international protection to be assessed in a single procedure. This would build on the highly regarded refugee determination system and would keep New Zealand in line with best practice internationally. The proposals also take the opportunity to clarify how New Zealand can deal with a protected person who would otherwise be liable for deportation, particularly where they present a significant risk to New Zealand.
Deportation
The proposed deportation system would bring together numerous provisions regarding removal, revocation and deportation in a transparent framework that clearly sets out a non-citizen's rights and obligations. It would provide for more efficient deportation processes, but would also increase fairness by, in many cases, allowing people to continue to work or study during any appeals.
Review and appeal
The proposed independent appeals system would establish a new single Immigration and Protection Tribunal (the tribunal), replacing the four existing appeals bodies. The tribunal would allow any non-citizen a single right of appeal that may include consideration of the facts of the matter, international obligations and humanitarian concerns, depending on the circumstances. Again, this proposal would create greater efficiencies in the overall immigration system, while maintaining New Zealand's high standards of fairness and improving transparency for non-citizens.
Using classified information
The proposals would allow classified information to be used in certain types of decision-making and appeals, as a last resort, without disclosing the information to the person for comment. These proposals would allow New Zealand to make appropriate decisions based on all available information. They build in special safeguards to the initial decision and appeal, including requiring a non-classified summary of the information to be disclosed where possible, appeals to be heard by a panel of up to three Judges on the tribunal, and special advocate provisions.
Third parties
New Zealand benefits by allowing third parties such as employers and education providers to engage with the immigration system and this will continue under the proposals in this Cabinet paper. Third party engagement in the system comes with obligations to ensure that their actions are lawful. While the obligations on third parties will not change, it is proposed that the incentives to comply with them are strengthened.
Compliance and enforcement
Ensuring integrity in the immigration system requires a balance between facilitating the entry and stay of non-citizens who comply with their obligations, and being able to manage those non-citizens who do not. The proposals would enable the Department to access the people, places and information required to ensure compliance with the immigration system.
Monitoring and detention
The immigration monitoring and detention framework being proposed aligns with New Zealand's national and international human rights obligations. The proposals are for a tiered system that would allow for more flexible responses to risk, including a greater ability to use reporting conditions instead of secure detention and greater discretion for the courts in issuing warrants of commitment. A limited power for designated officers to detain is proposed, but only to be activated by Order in Council once all systems and training are in place. The proposals also introduce additional safeguards, such as legal aid for detainees.
Biometric information
Finally, there are proposals to allow for a limited range of biometric information to be collected and stored electronically for identity verification purposes. This would enable the Department to use technological advances to help improve the integrity of the immigration system.