Consultation
Immigration Act Review: Cabinet Paper
Regulatory Impact Statement
Background
In March 2005, Cabinet directed the Department of Labour (the Department) to begin a fundamental review of the Immigration Act 1987 (the 1987 Act). In April 2006, Cabinet agreed to release a discussion paper, Immigration Act Review: Discussion paper, on the review for public consultation.
The Immigration Act review is part of the broader Immigration Change Programme which aims to improve the immigration system to ensure that New Zealand has the skills, talent and labour it needs, now and in the future, New Zealanders are confident of the security of our border, and that migrants and refugees settle well and integrate into communities.
This is an aggregate Regulatory Impact Statement (RIS) and Business Compliance Cost Statement (BCCS) of the overall review of the Immigration Act 1987.
Statement of the nature and magnitude of the problem and the need for government action
Significant global changes have taken place since the 1987 Act was enacted. There are greater flows of people around the world resulting in greater competition for skills, talent, and labour, and heightened risks and pressures on the border. The 1987 Act is inflexible in places, lacks transparency and simplicity and creates complex and inefficient processes, for example, limiting the use of automated decision-making for low risk, high value decisions such as student permit renewals. This limits the ability of the government to attract the temporary and permanent migrants that New Zealand wants and needs. In places the 1987 Act creates insufficient powers for compliance enforcement, or obligations on third parties, limiting the ability of the government to maintain the integrity of the immigration system and appropriately manage its risks.
Statement of the Public Policy Objective
The policy objectives of the Immigration Act review are to ensure that New Zealand's interests are protected and advanced, ensure compliance with international obligations, establish fair, firm and fast decision-making processes, and modernise and simplify the legislation. The proposals aim to create a system that is more transparent and easier to use, and more efficient and flexible, while maintaining an appropriate level of fairness.
Statement of Feasible Options (Regulatory and/or Non-Regulatory) that May Constitute Means for Achieving the Desired Objectives
Status quo
The 1987 Act provides a framework for the immigration system. It requires non-citizens to have authorisation to be in New Zealand through a system of visas for travel to New Zealand, permits for stay, and exemptions. It includes a role for the Minister in decision-making. There is no ability to use classified information in decision-making, with the exception of Part 4A of the 1987 Act which is outside the scope of this review.
The 1987 Act provides for permit revocation, removal and deportation and for an independent appeals system with four different independent appeals bodies relating to different appeal rights. There are a number of core obligations on third parties in the 1987 Act, such as those for employers and education providers to only employ or enrol persons who are entitled to work to study. The existing powers for compliance, enforcement and detention broadly work well but are limited in places.
Preferred options
Like the 1987 Act, it is proposed that the Bill be largely framework legislation, with detail generally contained in regulations or Immigration Instructions certified by the Minister. In some instances, particularly where there are potential impacts on an individual's rights, prescription in the legislation is necessary. Proposals for change include:
Chapter 1: A purpose statement, and broadening the criteria that may exclude a person from New Zealand.
Chapter 2: A simplified visa system that combines the current visa, permit and exemption system, and allows interim visas to be granted where a temporary entrant is applying for a further visa.
Chapter 3: Greater delegation of the Minister's decision-making powers, providing a legislative foundation for temporary and residence sponsorship and allowing organisations to be sponsors, allowing the use of Expressions of Interest (EOI) and Invitations to Apply (ITA) to be applied to all applications, and automated, electronic decision-making.
Chapter 4: A single protection determination procedure that incorporates New Zealand's core immigration-related international obligations.
Chapter 5: A streamlined deportation process that clearly establishes liability for deportation, standardising the different definitions and broadening some criteria, and enabling suspension or cancellation of that liability.
Chapter 6: A single appeals tribunal that hears residence, protection and deportation appeals, with only one appeal allowed (within timeframes that largely mirror the status quo). Deportation appeals will have hearings unless the person is a temporary entrant where hearings will be at the discretion of the tribunal. Judicial review will continue, but appeals on points of law will only be heard by the High Court with leave.
Chapter 7: Classified information may be used in decision-making without disclosure to the applicant, balanced by a set of safeguards including a non-classified summary of the information, appeals to be heard by up to three judges on the tribunal, and the non-citizen having access to a special advocate.
Chapter 8: Employers and education providers will be required to take 'reasonable steps', as stated in the Business Compliance Cost Statement, to confirm a non-citizen's entitlement to work or study. Increased penalties provided for education providers and an instant fines system for carriers who fail to meet obligations. Work entitlement information may be shared with employers, and immigration status information may be shared with publicly funded service providers.
Chapter 9: Powers to require address information of a person possibly liable for deportation from companies within broad industry groups, powers to immigration officials of entry and search without the presence of Police, airports providing space free of charge to the Department to undertake immigration functions, the ability of the Department to certify, rather than prove, some evidence from third parties, particularly overseas parties.
Chapter 10: Liability for deportation could result in liability for detention and immigration detainees would be able to access legal aid in some circumstances. Monitoring agreements could be established outside the detention regime. When detained, initial detention without a warrant of commitment (warrant) could occur for four days and the Courts could issue a warrant for up to 28 days for up to six months only unless the detainee hindered their departure. A limited power of detention for designated officers would be created along with greater provision to detain immigrants outside of Police and Corrections facilities.
Chapter 11: The ability to collect, store, and use biometric information for identity verification purposes that includes photographs/facial recognition, fingerprints, and iris scans for non-citizens, and photographs/facial recognition for citizens.
Statement of the Net Benefit of the Proposal, Including the Total Regulatory Costs (Administration, Compliance and Economic Costs) and Benefits (Including Non-Quantifiable Benefits) of the Proposal and Other Feasible Options
Government
All of the proposals, particularly the visa, decision-making, deportation, protection and appeals proposals, will benefit government by creating a system that is more transparent and easier to use, and more efficient and flexible, while maintaining an appropriate level of fairness. They will help the government achieve the goal of a fair, fast and firm immigration system. The proposals relating to deportation, classified information, third parties, compliance and enforcement, detention, and biometric information will help government to better manage risk, balancing the rights of those engaged in the immigration system and those of the government.
The classified information proposals would strengthen government's ability to choose who may enter and stay in New Zealand and help prevent undesirable non-citizens from gaining residence or protection status in New Zealand. There is a risk that the government will face criticism for the classified information proposals, which may be mitigated by the broad range of safeguards proposed.
The greatest cost to the government of the review will be establishing the single appeals tribunal, either supported by the Ministry of Justice or the Department of Labour.
| Justice ($m) | Labour ($m) | |
|---|---|---|
| Maximum capital over first five years (net) | $4.765 | $2.753 |
| Maximum operating over first five years (net) | $13.307 | $10.696 |
| Cost in outyears per annum (net) | $1.313 | $0.431 |
All other funding required (additional to fees and current baselines) to implement this review related to implementation, protection proposals and compliance proposals and are summarised below:
| 06/07 | 07/08 | 08/09 | 09/10 | 10/11 | 11/12 | 12/13 | Total | |
|---|---|---|---|---|---|---|---|---|
| Vote Immigration | ||||||||
| TOTAL OPERATING | 0.047 | 0.413 | 1.070 | 1.085 | 0.967 | 0.375 | 0.375 | 4.332 |
| TOTAL CAPITAL | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
All information technology (IT) changes that are required to support the new Act (such as changes resulting from the new visa system) have been integrated into the new business model IT change programme. Additional funding for the Act review would be required if the new business model proposals are not agreed.
Non-citizens
The proposed exclusion criteria are broadened and may result in a small additional number of persons who present a clear risk being excluded from New Zealand.
The new visa system will be simpler and more easy to use for both temporary and permanent migrants and there should be no costs to them resulting from this proposal. Increased delegation of immigration decision-making along with automated, electronic decision-making would increase the timeliness of decisions for some applicants. Risks of incorrect or inconsistent decision-making will be managed through the systems that are put in place to administer these provisions.
The new provisions may allow for more effective use of sponsors and bonds to allow an application to be approved where it may otherwise be declined, depending on the development of Immigration Instructions certified by the Minister. Where Cabinet agrees to the use of EOIs and ITAs, applicants will benefit from the staggering of the application process. For example, an applicant could wait until they received an ITA before committing to the expense of a health exam that was required with their application.
The protection proposals will benefit persons in need of international protection by providing a system that is more transparent and easier to use. Where protection is granted, the claimant will benefit through gaining protection in New Zealand.
The deportation proposals will create a system that is more transparent and easier to understand for non-citizens, and that will be more efficient as unnecessary decision-making steps will be removed. Non-citizens may be able to remain lawfully in the country during any appeals. The system will benefit appellants by ensuring that all appeals are heard earlier, because all grounds for appeal would be heard at once, rather than separately. This would require appellants to put forward all grounds for appeal at one time, as they often do in each individual hearing. A small number of residents liable for deportation on the grounds of fraud will have to meet a higher threshold humanitarian test than currently. Some non-citizens may be restricted from appealing on points of law if the High Court does not give leave. The classified information proposals may make it more difficult for a small number of persons to appeal against an adverse immigration or protection decision.
There is a risk that removing the IR 330 form as a reasonable excuse for employers could increase discrimination against persons who employers think may be non-citizens.
Enabling immigration status information to be shared with some publicly funded services providers may create a concern that access to these services will result in a negative immigration outcome, especially for those unlawfully in New Zealand. Information on non-citizens will not be captured for immigration purposes as a safeguard against these concerns. There may be privacy concerns for non-citizens who think entitlement information is personal and should not be shared.
Enabling a greater range of evidence to be certified for particular matters that will be presumed to be evidence before a court or tribunal should not have a significant impact on non-citizens who retain the right to contest all evidence brought before a court or tribunal as is currently the case.
The detention proposals do not limit a non-citizen's access to the courts and access to legal aid will ensure they have robust representation. Non-citizens may be detained for longer periods without a warrant review unless they present new circumstances to the courts but there will be a maximum limit on detention in most cases. Less frequent reviews will enable the courts to more robustly consider each case, and reduce the stress and physical impact of attending a warrant hearing. Proposals requiring carriers to remove non-citizens will result in decreased overall detention time. There may be benefits to non-citizens from enabling the government to explore alternatives to using Police or Corrections facilities for immigration detention.
The biometrics proposals will help facilitate immigration processing for the vast majority of travellers. Privacy and/or cultural considerations would be taken into account in implementing this proposal.
Society
All the benefits to government outlined above (particularly of the deportation, protection and appeals proposals) will also benefit New Zealand society. The proposals will benefit society by creating more flexible and responsive systems (such as the new visa system) that will encourage temporary and permanent migrants to come to New Zealand.
The third party proposals will benefit New Zealanders by minimising the problems caused by unlawful work (such as driving down wages and working conditions).
Industry
There will be compliance costs for businesses detailed in the business compliance cost statement. The proposal to allow organisations to sponsor may assist employers in filling vacancies, if they choose to take on the responsibility and potential cost of sponsoring. There may be a loss of revenue for some airports resulting from the proposals to require airports to provide space free of charge. [Information withheld under sections 9(2)(i) and 9(2)(j) of the Official Information Act 1982].
Immigration lawyers and advisers
There will be compliance costs for immigration lawyers and advisers relating to the time and resources taken to understand the new Immigration Act, particularly the new appeals system.
To mitigate the costs associated with the new Act, the Department will prepare written explanatory materials and will conduct a nationwide roadshow with 20 meetings.
Statement of Consultation Undertaken
Stakeholder Consultation: A public discussion paper was released in April 2006. Officials held public meetings in May and June 2006 to outline the proposals, which were attended by more than 650 people. The Department received 3,985 written submissions in response to this paper, of which 360 were unique. Submissions were received from a wide range of individuals and organisations including employer organisations, law societies, refugee and migrant groups and communities, immigration consultants, carriers, government agencies, and education providers.
All submissions received through the public process have been considered in preparing the proposals for change and a detailed summary of submissions has been publicly released. Concerns relating to specific proposals are set out in the detailed RIS available on the internet.
Concern was expressed over the proposal to withhold potential prejudicial information (PPI) and reasons from decision from offshore applicants due to reasons of administrative and natural justice. This concern has been addressed in the proposal to retain the status quo and provide PPI and reasons to all applicants. Similar concerns were raised by some submitters in relation to the use of classified information in decision-making, which have been addressed by increasing the safeguards being proposed to ensure that rights are not diminished.
Reservations about the proposals for deportation were mostly on the basis that different terms currently used (removal and deportation) reflected the differing reasons for expulsion and the varying seriousness of types of case. The proposed term "expulsion" was not favoured and "deportation" generally received support on the basis that it was more transparent and understandable.
Some concern was expressed about the compliance cost for employers and carriers if changes were made to their obligations. Specific proposals have been developed to reduce the cost on employers. There will be no impact on carriers who continue to meet their obligations (which remain unchanged).
Submitters considered that immigration officers should continue to work with the Police and Customs in undertaking entry and search functions. There appeared to be some misunderstanding about the difference in roles of compliance officers compared with visa and permit officers, resulting in a concern that all immigration officers would exercise these powers. This concern was also evident in submissions on the proposed limited power of detention and has been addressed by creating provisions to limit the use of the powers to trained and experienced officers with special designation.
Government Departments/Agencies Consultation: The following agencies were consulted paper: the Departments of Prime Minister and Cabinet and Internal Affairs, the Ministries of Foreign Affairs and Trade (MFAT), Health, Education, Economic Development, Transport, Justice (MoJ), and Pacific Island Affairs, the New Zealand Qualifications Authority, the Tertiary Education Commission, the New Zealand Defence Force, Police, Customs Service, and Security Intelligence Service, the Inland Revenue Department, the Office for Disability Issues, Crown Law, the Legal Services Agency and the Treasury. Te Puni Kōkiri was also informed of the proposals. The chairs of the Refugee Status Appeals Authority, the Removal Review Authority, the Residence Review Board, the Deportation Review Tribunal, the Privacy Commissioner, the Office of the Ombudsmen and the Human Rights Commission were also consulted.
Concerns relating to specific proposals are set out in the detailed Regulatory Impact Statements available on the internet.
MFAT were concerned about the impact of the universal visa system on the entry and stay of Australia citizens. These concerns have been addressed through provisions that enable visa-free travel, and applications for visas to be deemed to have been made.
MFAT and MoJ were concerned that New Zealand should not breach its international obligations by excluding any persons from protection who are protected under the Convention Against Torture or the International Covenant on Civil and Political Rights. This concern has been addressed in the streamlined protection system being proposed.
Concern was expressed by a range of stakeholders about the proposal to use classified information. Many commented that robust safeguards were required and these have been built into the proposal.
MoJ was not supportive of unlimited immigration detention provided for under the 1987 Act. The proposal is now to limit immigration detention to six months unless the detainee obstructs the removal process.
Business Compliance Cost Statement
Employers
There may be compliance costs for some employers relating to the new requirements to take reasonable steps to check a person's entitlement to work. Guidance on what constitutes reasonable steps will be developed by the Department in consultation with business and employer stakeholders. This approach will be responsive to a range of different employment scenarios so employers will be able to use a variety of mechanisms to determine a person's entitlement, including those which they already do.For example:
- In the fruit picking industry, a recruitment or contracting agency could include a check box about entitlement to work on registration forms and request proof of that status from a prospective employee. They could hold that proof on file.
- Where an employee presented a resume with details of continuous educational qualifications and previous employment in New Zealand, an employer could check qualifications and references, and keep a record of this on file.
- Retaining a copy of a New Zealand birth certificate, passport or citizenship paper would generally be evidence of reasonable steps to establish a person was a citizen.
To further minimise compliance costs for business, a facilitative system to enable access to work entitlement information will be developed.
To mitigate the costs associated with the new Act, the Department will prepare written explanatory materials and will conduct a nationwide roadshow with 20 meetings.
Businesses providing information for immigration compliance purposes
There may be minor compliance costs for businesses required to provide address information for immigration compliance purposes. It is estimated that the time to look up a customer record on an electronic customer database and confirm identity would be less than five minutes per person. The Department currently locates approximately 2,500 people per annum but the number of queries per annum that this number is derived from is not known. It is expected that the number of queries will not rise significantly, as the Department has limited funding to undertake compliance operations, but given the greater ability to access information, the number of successful results would rise.
Businesses will be required to provide records related to their own and/or an employee's compliance with immigration obligations or conditions of entry and stay in New Zealand. The cost of providing this information will vary considerably depending on the ability to access and the method of storage of records. As with the other proposals to expand access to information for immigration investigations, it is not expected that the number of queries or requests will significantly rise, but the success of immigration investigations may increase.
[1] The percentages used in the background paper should be treated as approximate only. Many submitters commented on an issue without expressing a view either way. For example, 70 percent support for a proposal does not necessarily mean that 30 percent opposed it.
[2] Costs are exclusive of GST.