Section 2 - Executive Summary

Purpose and principles (Section 3)

The Immigration Act has no purpose statement.

Objectives are included in some parts of the Immigration Act. They have been introduced as amendments at different times since 1987.

The purpose of immigration legislation is considered to be to:

• regulate the entry, stay and removal of non-New Zealand citizens, in a manner that is in New Zealand's interests, and
• provide for integrity in the immigration system.

New Zealand's interests are considered to include:

• maintaining the safety and security of New Zealand
• generating sustainable economic growth
• establishing strong communities
• fulfilling New Zealand's role as a good international citizen, and
• promoting international cooperation.

The new Immigration Act would set out a carefully drafted purpose statement.

The principles that underpin the new Immigration Act would be:

• a fair immigration system
• effective decision-making
• efficient processes, and
• understandable and accessible legislation.

The visa and permit system (Section 4)

The Immigration Act creates a two document system (visas and permits) for managing travel to, and entry and stay in New Zealand:

• Visas are documents that allow a person to travel to New Zealand.
• Permits are documents issued onshore that allow non-citizens to enter and remain in New Zealand.

Requiring non-citizens to apply for visas and permits ensures that they are assessed against agreed immigration policies. The system also allows for visa and permit exemptions.

The new Immigration Act would create a single document system, adopting the generic term “visa”, for managing travel to, and entry and stay in New Zealand.

The system would be easier to use and understand, while retaining the functions of the current visa and permit system.

The new Immigration Act could end some of the current exemptions. It would provide a more flexible framework for applying different levels of scrutiny, according to risk and the person's intentions in New Zealand.

Decision-making (Section 5)

The Immigration Act confers most decision-making powers directly on the Minister of Immigration.

The Minister delegates most decision-making powers to officials, with some exceptions - including making exceptions to residence policy.

The Minister of Immigration also has general discretion to intervene at any point and has a heavy workload of requests for individual intervention.

The Immigration Act only requires reasons for decisions to be given when a person is onshore. Operational practice, however, requires potentially prejudicial information and reasons for decisions to be given to offshore and onshore applicants. There is no ability to decline an application on the basis of classified information which cannot be disclosed to an applicant.

The new Immigration Act would continue to confer most decision-making powers directly on the Minister of Immigration. General discretion for the Minister to intervene at any point would remain.

The Minister of Immigration's involvement in individual cases could be managed by:

• delegating to selected senior officials the power to make exceptions to residence policy, and
• administrative changes (such as requiring a person to exhaust all other avenues of appeal before ministerial intervention).

The new Immigration Act would specify that potentially prejudicial information and reasons for decisions do not need to be given where this would involve releasing classified information. Only onshore applicants would have the right to have this reviewed.

The new legislation would also enable electronic and third-party decision-making, which could be activated by government in the future.

Exclusion and expulsion (Section 6)

Grounds for exclusion from entry include criminal conviction, previous expulsion from a country and threats to public safety including terrorism. Entry can also be refused on the basis of failing to meet policy, including health and character policy.

Grounds for expulsion are set out throughout the Immigration Act.

Expulsion processes are inefficient and complex, and can create extended delays. They include separate steps for permit revocation and distinctions between removal and deportation. The Minister of Immigration must make all deportation and residence permit revocation decisions.

The new Immigration Act would broaden and strengthen the current legislative provisions for excluding a non-citizen from entering New Zealand. It would include health and character provisions.

The new Immigration Act would establish a single provision clearly setting out the grounds for expelling a non-citizen from New Zealand and a single term - “expulsion”.

The new Immigration Act would establish a new streamlined expulsion process:

• If a non-citizen meets the criteria for expulsion, they would be automatically liable for expulsion.
• There would be no requirement for the Minister of Immigration to be involved in expulsion, other than in cases of threats to national security (or, perhaps, permanent exclusion).

In all cases, there would be departmental and ministerial discretion not to proceed, even where liability for expulsion was established.

There would be graduated penalties for expulsion, ranging from a two-year ban to a permanent ban.

Appeal provisions are discussed below.

Review and appeal (Sections 7 and 8)

Status quo
Access to review and appeal under the current system does not necessarily reflect the interests at stake and can create extended delays.

The Immigration Act establishes four independent appeal authorities:

• the Residence Review Board
• the Removal Review Authority
• the Deportation Review Tribunal, and
• the Refugee Status Appeals Authority.

A person may have access to multiple avenues of appeal prior to expulsion.

They may also have access to judicial review, the courts on questions of law, the courts in relation to a conviction, the Minister of Immigration and the Ombudsmen.

Proposals
The new Immigration Act would establish access to internal review and independent appeal based on the interests involved.

Possible changes include:

• granting access to internal review (rather than independent appeal) to offshore residence applicants who do not have a New Zealand sponsor
• allowing only one appeal against expulsion on the facts
• appeals against expulsion on humanitarian grounds by people unlawfully in New Zealand would be limited to those who had:
• previously spent two years lawfully in the country, or
• who had a New Zealand sponsor, and
• the Minister of Immigration would still have the power to intervene in any case, but, under normal circumstances, would not do so unless all other avenues were exhausted and only if the case had merit.

The new Immigration Act would strengthen and streamline independent appeals by establishing a single immigration and refugee appeals tribunal within the Ministry of Justice, with the chair and deputy chairs appointed as District Court Judges.

This would effectively amalgamate the current Refugee Status Appeals Authority, Removal Review Authority, Deportation Review Tribunal and Residence Review Board.

The use of classified information (Section 9)

Status quo
Classified information generally cannot be used in immigration decision-making. This may prevent New Zealand from making appropriate decisions when open-source information is not available.
The only exception is classified information that relates to a security risk, which is covered by Part 4A - Special procedures in cases involving security concerns. Part 4A is outside the scope of this review.

Proposals
The new Immigration Act would allow for classified information to be used in all immigration decision-making without disclosing it to the applicant.

In the case of offshore decisions, there would be no right of review on this matter.
In the case of onshore decisions, the following new processes would be established to provide independent review of the use of classified information:

• decisions to decline an immigration application on the basis of classified security information could be reviewed by the Inspector-General of Intelligence and Security
• decisions to decline an immigration application on the basis of classified information other than security information could be appealed to a judge on the new immigration and refugee tribunal, and
• decisions to decline refugee or protection status on the basis of any classified information could be appealed to a judge on the new immigration and refugee tribunal.

Compliance and enforcement (Section 10)

Status quo
The Immigration Act provides immigration officers with limited powers to require information and enforce immigration rules. There are gaps that prevent effective enforcement in some cases.
The Immigration Act provides the Minister of Immigration and delegated immigration officers with the discretion to grant a permit to a person in New Zealand unlawfully.

This discretionary power does not effectively address the problem of people becoming unlawful while waiting for a decision on an application for a further temporary permit.

Proposals
The new Immigration Act would confer a limited range of new powers to immigration officers where there are gaps that prevent effective enforcement in some cases.

In particular, the new Immigration Act would confer:

• on immigration officers powers to require information to locate people unlawfully in New Zealand and to locate people under investigation for breaches of the Immigration Act
• on immigration and Customs officers powers to detain a person for immigration reasons in the absence of a Police officer for up to four hours, and
• on immigration officers powers of search and entry for immigration reasons in the absence of Police or Customs officers.

These powers would be accompanied by strict guidelines and safeguards, including appropriate delegations, training and support. Police and Customs officers would retain their existing powers.
The new Immigration Act would retain discretion for the Minister of Immigration and delegated officials to grant a permit to a person in New Zealand unlawfully.

It would also introduce discretionary permit extensions for those who lodge an application while in New Zealand lawfully. The extension could only last until the date a decision on the application was made.

The use of biometrics (Section 11)

Status quo
The Immigration Act does not provide for the use of new technological developments that allow photographs and other biometric identifiers to be scanned, stored, and used for identity comparisons.

The Immigration Act does allow immigration officers to require evidence of identity where an offence is suspected and where a person is suspected of being in New Zealand unlawfully. Immigration officers may also demand a person's passport or certificate of identity at the border, on arrival.

In addition, visa/permit applicants and refugee claimants need to provide sufficient information to allow an officer to determine their identity and whether they meet the required criteria.

Proposals
Under the new Immigration Act, delegated immigration officers would have the power to require, use and store certain biometric information (such as photographs) about any individual who requires permission to enter or remain in New Zealand. (This would include residence and temporary entry applicants and refugee claimants.)

The new Immigration Act would also expressly allow immigration officers, refugee/protection officers and independent tribunal members to request the voluntary provision of DNA and age verification tests for the purpose of credibility assessments.

Detention (Section 12)

Status quo
The Immigration Act provides a detention regime that is fundamentally sound, but administratively inefficient and inconsistent. For example:

• The current maximum period of detention without a warrant no longer serves the purpose of allowing a turn-around at the border without requiring a warrant of commitment.
• In many cases the Immigration Act does not allow a judge the discretion to order judicial review of immigration detention less frequently than every seven days. This can be excessively time- and resource-intensive for all agencies involved.
• There are also inconsistencies between New Zealand's ability to detain a person onshore and at the border.

Proposals
The new Immigration Act would provide for:

• appropriate detention and review periods
• consistent detention of refugee status claimants where appropriate, and
• immigration officers to undertake immigration detention in places approved by the Chief Executive for that purpose. This power would give effect to the existing legislation that enables the Chief Executive of the Department of Labour to approve a place as a place of immigration detention.

The role of third parties (Section 13)

Providers of publicly-funded services

Current legislation limits the ability, in some cases, to share information regarding a person's immigration status to determine access to publicly-funded services.

The new Immigration Act would allow the Department of Labour to share information with other departments and the wider state sector, to allow them to establish eligibility for, or audit, publicly-funded services. There would be privacy safeguards.

Sponsors

The Immigration Act sets out obligations on sponsors of temporary entrants, but not on sponsors of residents. There is a lack of clarity and transparency around sponsorship and few incentives to meet obligations.

The new Immigration Act would strengthen the legislative basis for sponsorship obligations by including provisions on sponsorship for residence and temporary entry. It would set out minimum eligibility criteria for sponsors and the types of undertakings sponsors could be required to make. Business and organis-ations would be allowed to act as sponsors, including when they make job offers to residence applicants.

Incentives to comply with sponsor obligations would be strengthened through immigration sanctions (such as restrictions on further sponsorship) and sponsor bonds.

Employers

Obligations on employers are provided for in legislation and in policy. Employers commit an offence under the Immigration Act if they employ a person who is not entitled to work in New Zealand.

Enforcing this obligation has been prevented because a reasonable excuse for employing someone not entitled to work includes seeing an employee's tax code declaration form. This is an unreliable form of evidence, as tax codes are routinely issued to persons without entitlement to work in New Zealand.

The new Immigration Act would enable obligations to be imposed on employers. This would include:

• a reminder to employers that they must comply with New Zealand employment legislation, and
• provision for further obligations on employers to be established in policy (such as good employer requirements).

In addition, the new Immigration Act would establish an obligation to check (and cite reliable evidence) that a prospective employee is entitled to work in New Zealand. The excuse of having sighted a tax code declaration would be removed. This could increase compliance, but the need to check immigration status could raise concerns about breaches of privacy and inappropriate use of status checks.

Education providers

Education providers have obligations set out in the Immigration Act and in the Ministry of Education's Code of Practice for Pastoral Care of International Students (the Code).
The penalties for non-compliance with immigration obligations are minimal and difficult to enforce.

The new Immigration Act would include a requirement that education providers be a signatory to, and comply with, the Code. Ability to enforce education provider obligations would be strengthened by:

• power for immigration officers to require information from education providers, and
• a more flexible penalties regime that includes instant fines, immigration consequences and prosecutions.

Carriers

Carriers (airlines and sea-going craft) have obligations set out in the Immigration Act. These include obtaining and providing the Department of Labour with information about passengers and ensuring passengers have appropriate documentation.

Offences exist for failing to meet obligations, with fines of up to $20,000. However, there are difficulties enforcing obligations, mainly because of the resources required in taking prosecutions.

The new Immigration Act would carry over existing carrier obligations, with minor amendments to improve clarity and effectiveness.

Incentives to comply with obligations would be strengthened through the introduction of an instant fines regime when closely specified carrier obligations are not met. Fine levels would vary according to the seriousness of the offence, and there would be discretion to waive fines where appropriate.

New Zealand's role as an international citizen (Section 14)

Status quo
The only international obligation referred to in the Immigration Act is the Refugee Convention. Other obligations may be considered by the Minister of Immigration, the Department of Labour, the Removal Review Authority, the Deportation Review Tribunal or the courts.

The current system risks repetitious or inconsistent decision-making, and decision-makers may not be experts in international law. It also puts New Zealand in danger of not meeting its international obligations.

Proposals
The new Immigration Act would set out and clarify New Zealand's absolute obligations to protect persons under the Convention Against Torture and the International Covenant on Civil and Political Rights.

The new Immigration Act would:

• establish a single procedure for determining refugee and protection status, and a single right of appeal on the facts
• include legal recognition of refugees selected by New Zealand offshore under the Refugee Quota Programme
• strengthen the obligations on claimants to assist the decision-maker, the powers of decision-makers to request or obtain information, and the offences and penalties for abusing the determination system, and
• clarify when refugees may be expelled and how international obligations that prohibit expulsion are to be implemented.