Recommendations

I recommend that the Committee:

1. note that in March 2005 Cabinet directed the Department of Labour to review the Immigration Act 1987 to ensure that New Zealand's interests are protected and advanced, to ensure compliance with international obligations, and to establish fair, firm and fast decision-making processes [CAB Min (05)10/4 refers];

2. note that the proposals are particularly focused on:
   a. facilitating the entry and stay of people who meet New Zealand's needs, and
   b. managing risks in a fair and balanced manner;

3. agree that the Bill be largely framework legislation, with prescription where safeguards relating to individual rights are necessary;

   Core provisions (Appendix B: Chapter One)

4. agree that the Bill include a purpose statement;

5. agree that the purpose of the Bill is to:
   a. allow for immigration to New Zealand that ensures that New Zealand has the skills and labour it needs
   b. contribute to the security of New Zealand's border
   c. uphold New Zealand immigration-related international obligations
   d. facilitate the settlement of migrants and refugees, and
   e. balance the rights of individuals with the obligation of the government to manage immigration in the national interest, as determined by the Crown;

6. agree that the Bill reaffirms the right of New Zealand citizens to be in New Zealand;

7. agree that:
   a. all non-citizens in New Zealand are required to hold a valid visa and to comply with the conditions of that visa, and
   b. non-citizens in New Zealand who do not hold a valid visa are prohibited from applying for a visa;

8. agree that the Bill includes exclusion criteria, based largely on the Immigration Act 1987, that exclude non-citizens who have convictions at a specified level of seriousness or pose a threat or risk to New Zealand;

   visas (appendix b: chapter two )

9. agree that the single term "visa" be used to describe all authorities to travel to or stay in New Zealand and that:
   a. all non-citizens must hold a valid visa to before travelling to New Zealand, unless the requirement is waived individually or by class
   b. non-citizens must abide by their visa conditions;

10. note that freedom of movement under the Trans Tasman Travel Arrangement is a very significant element of New Zealand's relationship with Australia and that under present arrangements Australian citizens and permanent residents are not required to hold a visa to travel to New Zealand or a permit to stay;

11. agree that Australian citizens and residents not be exempted from the requirement that all non-citizens hold a valid visa to be in New Zealand lawfully;

12. agree that Australian citizens and residents be given a waiver under regulations from having to hold a visa to travel to New Zealand and, on arrival, be granted a resident visa with permission to stay conditions;

13. note that Australians would not be subject to any actual additional administrative requirements, and that this system would be similar to Australia's use of the Special Category Visa granted on arrival to New Zealand citizens entering Australia;

14. agree that any changes in the treatment of Australian citizens and residents travelling to and staying in New Zealand be carefully communicated as early as possible to the Australian Government, at a suitable level, and ahead of any public announcement;

15. agree that the types of visa established under the Bill be:
    a. permanent resident visas, giving an indefinite stay and right of re-entry without other conditions
    b. resident visas, allowing non-citizens to stay indefinitely but subject to conditions, and those who meet conditions could become permanent residents
    c. temporary entrant visas of various types valid for travel and stay for specified periods, rather than indefinitely, to be established in Immigration Instructions, including current temporary permit types and current temporary exemptions
    d. limited visitor visas, giving a stay for an express purpose only, with extensions available only for that purpose, and
    e. transit passenger visas, which do not give a right to apply for entry permission but allow the intentions of transit passengers to be examined before they travel;

    Decision-making (Appendix B: Chapter Three)

16. agree that the Bill allow the Minister to certify "Immigration Instructions", incorporating "Residence Instructions" and "Temporary Entry Instructions", that contain the fundamental rules relating to visa applicants and applications governing the travel to, entry and stay in New Zealand;

17. agree that the Bill include the powers of the Minister of Immigration to:
    a. certify Immigration Instructions
    b. grant visas (including to non-citizens unlawfully in New Zealand)
    c. make special directions
    d. cancel or suspend liability for deportation, and
    e. delegate powers;

18. agree that the Bill require the chief executive of the Department to designate an officer or a class of officers to perform specified statutory functions subject to any limits or conditions;

19. agree that the Bill enable electronic decision-making, with appropriate safeguards such as the ability to reverse decisions made in administrative error and that the implementation of electronic decision-making would be subject to further Cabinet consideration;

    Protection (Appendix B: Chapter Four)

20. agree that New Zealand's existing obligations to assess claims to protection under the Refugee Convention, article 3 of the Convention Against Torture (CAT), and articles 6 and 7 of the International Covenant on Civil and Political Rights (ICCPR) be set out in the Bill, in a single determination procedure;

21. agree that determination officers would have the additional function of assessing whether there are serious reasons for considering that a claimant has:
    a. committed a crime against peace, a war crime, or a crime against humanity
    b. committed a serious non-political crime outside New Zealand prior to entry to New Zealand, or
    c. been guilty of acts contrary to the purposes and principles of the United Nations;

22. note that the criteria in recommendation 21 have the effect of excluding a person from the Refugee Convention, but not from CAT or ICCPR

23. agree that the Minister would be responsible for determining what immigration status, if any, be given to persons protected under CAT or ICCPR but excluded from the Refugee Convention (prosecution in New Zealand or extradition to a safe third country may also be options);

24. agree:

    
    

    EITHER, OPTION A
    a. that New Zealand should not become party to the 1954 Convention Relating to the Status of Stateless Persons at this time due to the need for more comparable international information to quantify the costs and risks to New Zealand, and because, if they get here, genuine stateless persons can be allowed to remain in New Zealand using other existing mechanisms;

    OR, OPTION B
    b. to direct officials to report back on becoming party to the 1954 Convention Relating to the Status of Stateless Persons without incorporating it into the proposed single determination procedure in the Immigration Bill, in line with the practices of other countries;

    OR, OPTION C
    c. to incorporate an assessment of the 1954 Convention Relating to the Status of Stateless Persons into the proposed single determination procedure in the Bill, to be assessed following assessments of the other obligations in all cases, in line with the recommendations of the UNHCR, and

    d.to accede to the 1954 Convention Relating to the Status of Stateless Persons following treaty examination and passing of the Bill and to table the Convention and a National Interest Analysis for becoming party to the Convention in Parliament;

    deportation (Appendix B: Chapter Five)

25. agree that non-citizens should be liable for deportation when they come within the list of deportation criteria specified in the Bill;

26. agree that the Minister have a delegable power to cancel deportation liability where it was not considered appropriate to put a non-citizen through the deportation process;

27. agree that there would be robust consideration of every individual case to assess whether deportation is appropriate, but that the Minister or delegated officer would not be compelled to consider or make a deportation cancellation;

28. agree that the criteria that would make a non-citizen liable for deportation are:
    a. visas granted in error
    b. unlawful presence in New Zealand
    c. temporary stay in New Zealand revoked
    d. threat or risk to national or international security
    e. new information relating to character, applicable at the time residence was granted, that indicates that the non-citizen would not have been granted residence if that information been available at that time
    f. conviction for offences specified in the Bill
    g. resident visa or permanent resident visa obtained by fraud
    h. resident breached visa conditions, and
    i. where a person who lost New Zealand citizenship and reverted to resident status was liable for deportation as a resident;

29. agree that the deportation liability for resident or permanent resident offenders would be triggered by an actual sentence of 5 years imprisonment during the first 10 years of residence, a conviction punishable by 24 months or more imprisonment during the first 5 years of residence, and a conviction punishable by 3 months or more imprisonment during the first 2 years of residence and any period before that;

30. agree that a system of graduated bans preventing deportees be established, ranging from no ban where a visa was granted in error to a permanent ban for those deported for fraud, using a false identity, for being a threat or risk to national or international security;

    review and appeal (Appendix B: Chapter six)

31. agree that Bill establish a single independent Immigration and Protection Tribunal, that replaces the current Residence Review Board, Removal Review Authority, Refugee Status Appeals Authority, and Deportation Review Tribunal;

32. agree that the Immigration and Protection Tribunal initially be supported by:

    EITHER
    a. the Department of Labour
    
    OR
    b. the Ministry of Justice;

33. agree that a person may have a single right of appeal to the Immigration and Protection Tribunal only, and that where a person is eligible for more than one appeal, all grounds must be lodged together;

34. agree that the functions of the Immigration and Protection Tribunal are to determine appeals against:
    a. declined residence applications
    b.deportation liability (on the facts and humanitarian grounds where applicable)
    c. declined protection claims, and
    d. deportation liability relating to refugees and protected persons;

35. agree that judicial review may be sought for a decision made under the Act, except where that person has a de novo appeal right to the Immigration and Protection Tribunal;

36. agree that:
    a. a person may seek leave of the High Court to appeal a decision of the Immigration and Protection Tribunal on a point of law, within 28 days of notification of the tribunal decision
    b. judicial review proceedings must be lodged within 28 days of the decision to be reviewed
    c. the High Court must endeavour to determine appeals on points of law and judicial review together where possible, and
    d. as with the status quo, the Crown would have the same rights of appeal as the applicant themselves;

37. agree that:
    a. no complaints may be made under the Human Rights Act 1993 that relate to the content or application of immigration legislation, regulations or instructions, and the Human Rights Commission may not bring proceedings in relation to these matters;
    b. subject to recommendation 37(a) the Human Rights Commission may undertake all of its other functions including, but not limited to:
    i. inquiring generally into any matter, or any practice, or any procedure, if it appears to the Commission that the matter involves, or may involve, the infringement of human rights
    ii. making public statements in relation to any matter affecting human rights
    iii. receiving and inviting representations from members of the public on any matter affecting human rights
    iv. reporting to the Prime Minister on any matter affecting human rights, including the desirability of legislative, administrative, or other action to give better protection to human rights, or on the implications of any proposed legislation (including subordinate legislation) or proposed policy of the Government that the Commission considers may affect human rights;

    Using classified information (Appendix B: Chapter Seven)

38. agree that:
    

    EITHER, OPTION A:
    a. classified information may be used in immigration and protection decision-making with safeguards including non-classified summaries of information, special advocates, and appeals determined by a panel of up to three Judges on the Immigration and Protection Tribunal, as set out in detail in the technical recommendations

    OR, OPTION B:
    b. the status quo be retained, that is, the Department does not use non-disclosed classified information in standard immigration decision-making

    OR, OPTION C:
    c. decisions on the use of classified information in decision-making be deferred to the review of Part 4A of the Immigration Act 1987;

39. agree, in addition to either Option A, B or C above, that:

    EITHER
    a. officials report back on the review of Part 4A following the conclusion of Mr Zaoui's case,

    OR
    b. officials report back on Part 4A prior to finalising the draft Bill for introduction to Parliament in April 2007;

    third parties (Appendix B: Chapter eight)

40. agree to continue current employer obligations so an employer must not either knowingly or without reasonable excuse, employ (or maintain the employment of) a non-citizen who is not entitled to work and that holding an Inland Revenue Department tax code declaration IR330 form would no longer constitute a reasonable excuse;

41. agree that the Bill:
    EITHER, Option A
    a. enable the Department to disclose that an identifiable, non-citizen prospective employee is entitled to work, and the duration of that entitlement with a potential employer (without explicit consent from the prospective employee)

    OR, Option B
    b. retain the status quo, whereby the Department requires the explicit consent of a non-citizen to disclose if they are entitled to work, and the duration of that entitlement;

42. agree that that an education provider must not either knowingly or without reasonable excuse, enrol (or maintain the enrolment of) a non-citizen who is not entitled to study but that an education provider does not commit an offence for enrolling, or maintaining the enrolment of a non-citizen child in compulsory education;

43. agree that the offence of, without reasonable excuse, enrolling a non-citizen who is not entitled to study would result in a maximum fine of $30,000 on conviction and that the offence of knowingly enrolling or continuing to enrol a non-citizen who is not entitled to study would result in a maximum fine of $50,000 on conviction

44. agree to introduce an instant fine system for strict liability offences where carriers fail to comply with obligations to check immigration documentation, comply with the Advance Passenger Processing system and provide Passenger Name Record data and that:
    a. that for failure to check prescribed immigration documentation where the security of the border is not compromised there is a fine of $1,000 for a person in charge of a craft or for a carrier
    b. that for failure to check prescribed immigration documentation where the security of the border is compromised there is a fine of $2,500 for a person in charge of a craft, or $5,000 for a carrier, and
    c. for failure to comply with other APP system and PNR data related obligations there is a fine of $2,500 for a person in charge of a craft or $5,000 for a carrier;

45. agree that the Bill:
    
    EITHER,Option A
    a. continue data-matching provisions with the agency responsible for the administration of the Social Security Act 1964 with amendments to enable the chief executive of the Department to supply:
    i. information on the date of deportation, in relation to those non-citizens deported from New Zealand, and
    ii. the outcome of a protection claim determination, and any determination of a protection appeal for protection claimants.
    
    OR, Option B
    b. continue data-matching provisions with the agency responsible for the administration of the Social Security Act 1964 as per the status quo;

46. agree that the Bill include specific provisions to enable the Department to disclose immigration status information about an identifiable non-citizen to publicly funded service providers who require this information to determine eligibility (without explicit consent from the non-citizen);

    Compliance and enforcement (Appendix B: Chapter Nine)

47. agree that the Bill enable designated officers or determination officers to require address information to locate people who are liable, or who may be liable, for deportation from New Zealand;

48. agree that powers of entry and search contained within the Immigration Act 1987 be carried over into the Bill as powers designated by the chief executive;

49. agree that this power be activated by Order in Council, made once the chief executive had satisfied the Minister of Immigration that all necessary training, systems and procedures were in place;

50. agree that the Bill establish the power for designated officers to enter and search buildings and premises to serve and/or execute a deportation notice or order;

51. agree that designated officers may enter and search buildings, premises and craft in border areas to locate people who may be committing an immigration offence, unlawfully present in New Zealand, refused entry to New Zealand, or to detect or prevent an immigration offence;

52. agree that powers of entry and inspection contained within the Immigration Act 1987 be carried over into the Bill as powers designated by the chief executive;

53. agree that powers of entry and inspection (where these are additional to those existing in the Immigration Act 1987) be activated by Order in Council made once the chief executive has satisfied the Minister of Immigration that all necessary training, systems and procedures were in place;

54. agree to introduce a power of entry for designated officers to Immigration Control Areas (discussed in Chapter Two: Visas), and craft within those areas, to undertake immigration duties and to search for travel and identity documentation;

55. agree that the Bill provide for the Department to require from airport management companies the provision of space for operational purposes;

56. agree that operational spaces used by the Department not be subject to charges;

    Detention (Appendix B: Chapter Ten)

57. agree that the Bill enable the Department to decide an appropriate form of management for non-citizens who are liable for detention including:
    a. agreeing to reporting and residency requirements outside the warrant process, or
    b. requesting the courts to order a non-citizen's release on conditions, or authorise their detention under a warrant;

58. agree that the Bill enables a non-citizen to be detained for an initial period of up to 96 hours (four days), after which the system of warrants would continue to allow the courts to release a non-citizen on conditions, or to detain them considering the:
    a. individual circumstances of their case
    b. level of risk the non-citizen represents, and
    c.need to ensure a high level of compliance with immigration law;

59. agree that where a non-citizen has exhausted all appeal rights and has no right to remain in New Zealand, and they have not departed after an ongoing period of secure immigration detention of six months, the courts may not issue any further warrants for secure immigration detention except where a direct or indirect reason for the non-citizen failing to depart is due to some action or inaction by the non-citizen themselves;

60. agree that the Bill allow non-citizens to be monitored or detained where they fail to comply with the requirements of the immigration system, and represent or are suspected of representing a risk to New Zealand, where:
    a. they are refused entry at the border
    b. their identity is unknown
    c. they are a risk or threat to national or international security
    d. they are liable for deportation, or
    e. they have been issued with a deportation order;

61. agree that the Bill incorporate a statutory power, that will be activated by Order in Council subject to further Cabinet agreement, for designated officers to detain non-citizens for immigration purposes:
    a. for up to four hours, OR
    b. until police officers give effect to the detention, OR
    c. until the non-citizen is detained in a place of detention, whichever occurs first;

62. agree that the provisions in the Immigration Act 1987, which enable the Department to manage open detention at Mangere, be incorporated in the Bill without limiting them to refused entry non-citizens, allowing their application to all non-citizens liable for detention;

63. direct the Department to develop terms of reference to undertake a whole of government scoping exercise that considers options for undertaking secure immigration detention, supported by appropriate resources;

    Biometric information (Appendix B: Chapter Eleven)

64. agree that the Bill enable the following biometric information to be required from non-citizens for immediate use and for storage for future use:
    a. photographs,
    b. fingerprints, and
    c. iris scans;

65. agree that the Bill enable photographic biometric information to be required from people arriving as New Zealand citizens for immediate use;

    Detailed and technical recommendations

66. agree to the detailed and technical recommendations in Appendix A;

    Financial implications

67. note that the implementation of the Bill will incur the costs for the Department of Labour and, depending on decisions, the Ministry of Justice;

68. note that agreement to policy recommendations is being sought in advance of agreement to funding in order to allow the Bill to be drafted;

69. note that some of these costs can be met from immigration fees, however additional Crown funding and capital funding will be required;

70. note, in respect of the administration of the Immigration and Protection Tribunal,
    
    EITHER
    a.the following projected maximum costs for the Ministry of Justice and the Department of Labour if the Ministry of Justice administers the Immigration and Protection Tribunal

	$m - increase/(decrease)
	06/07	07/08	08/09	09/10	10/11	11/12	12/13	Total
Vote Immigration
Net operating impact		0.105	0.894	0.525	0.527	0.527	0.527	3.105
Net Capital impact		1.200	0.800	0	0	0	0	2.000
Vote Justice
Net operating impact		2.074	1.968	2.716	1.872	0.786	0.786	10.202
Net Capital impact		0.486	2.279					2.765
TOTAL OPERATING		2.179	2.862	3.241	2.399	1.313	1.313	13.307
TOTAL CAPITAL		1.686	3.079	0	0	0	0	4.765

OR
b.the following projected maximum costs for the Department of Labour for the administration of the Immigration and Protection Tribunal;

	$m - increase/(decrease)
	06/07	07/08	08/09	09/10	10/11	11/12	12/13	Total
Vote Immigration
Net operating impact	0	2.175	2.587	2.895	1.768	0.840	0.431	10.696
Net Capital impact	0	2.753	0	0	0	0	0	2.753
TOTAL OPERATING	0	2.175	2.587	2.895	1.768	0.840	0.431	10.696
TOTAL CAPITAL	0	2.753	0	0	0	0	0	2.753

71. note the following projected maximum costs for the Department of Labour, which exclude the costs relating to the administration of the Immigration and Protection Tribunal:

	$m - increase/(decrease)
	06/07	07/08	08/09	09/10	10/11	11/12	12/13	Total
Vote Immigration
Net operating impact	0	0.460	1.070	1.085	0.967	0.375	0.375	4.332
Net Capital impact	0	0	0	0	0	0	0	0
TOTAL OPERATING	0	0.460	1.070	1.085	0.967	0.375	0.375	4.332
TOTAL CAPITAL	0	0	0	0	0	0	0	0

72. invite the Minister of Immigration to submit a bid to Budget 2007 to be considered alongside all other priorities, with drawdown of any agreed implementation funding to be subject to a further report back to Cabinet with a detailed business case by the end of 2007;

73. agree that all of the decisions in this paper are subject to additional funding being agreed through Budget 2007;

74. note that implementation costs of $0.189 million (GST exclusive) will be incurred by the Department of Labour in 2006/07, of which $0.142 million cannot be met from within existing baselines, however these costs can appropriately be funded from immigration fees;

75. approve the following change to appropriations to fund implementation costs to be incurred in 2006/07 by the Department of Labour, with no impact on the operating balance:

	$m - increase/(decrease)
Vote Immigration Minister of Immigration	2006/07	2007/08	2008/09	2009/10	2010/11 & Outyears
Departmental Output Expense: Services to Increase the Capacity of New Zealand Through Immigration (funded by revenue Other)	0.142	-	-	-	-
Total Operating	0.142	-	-	-	-

76. agree that $0.142 million will be charged against the Immigration Memorandum Account;

77. agree that the changes in appropriations for 2006/07 above be included in the 2006/07 Supplementary Estimates and that, in the interim, these expenses be met from Imprest Supply;

    Next steps and legislation

78. note that the priority ranking for this Bill is Category 5 (instructions to the Parliamentary Counsel Office to be provided in the year), with a view to introducing legislation to the House in April 2007, following Cabinet agreement to the 2007 Budget package;

79. agree that the Bill be binding on the Crown;

80. invite the Department to issue drafting instructions to Parliamentary Counsel in accordance with decisions made after consideration of this paper;

81. agree that decisions on technical issues that might arise in the course of drafting be delegated to the Minister of Immigration;

82. note that if issues of substance arise in the course of drafting, these will be referred back to the Cabinet Policy Committee by the Minister of Immigration, following consultation with other relevant Ministers;

    Publicity

83. agree that, should Cabinet agree to the recommendations in this paper, the Minister of Immigration will release a media statement, this paper, the summary of public submissions, and the Regulatory Impact Statement and Business Compliance Cost Statement.

Hon David Cunliffe

Minister of Immigration

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