Section 3 - Purpose and Principles
Every sovereign nation has the right to decide who may enter and remain in its territory and under what circumstances. This may be subject to some constraints, such as undertakings made within the context of free trade agreements or commitments to international instruments like the 1951 Convention Relating to the Status of Refugees (the Refugee Convention).
The primary purpose of immigration legislation is to control the movement of people in New Zealand's interests. Without some way of managing people flows, there would be a free flow of non-citizens across the border, who would not necessarily benefit New Zealand.
There is a strong relationship between immigration control and the sovereignty of a nation. Immigration legislation creates a clear boundary between a country's citizens and residents, and others.
Immigration legislation does more than simply regulate the movement of people. It also provides the framework for regulating the broader immigration system. Immigration has a high level of human interest and affects people's lives. It impacts on the existing population and prospective migrants and visitors. It is therefore subject to a significant level of public scrutiny.
It is essential that immigration legislation provides for a robust and accountable system that creates public confidence. The legislation should, for example:
The purpose of immigration legislation could therefore be simply expressed as:
If the purpose of immigration legislation is to regulate the entry and stay of non-citizens in New Zealand's interests, it is useful to consider what New Zealand's immigration-related interests are. These are currently considered to be:
A primary objective of the government is to maintain the safety and security of the nation. New Zealand needs to know who is entering the country, where they are from and why they are here. This helps us to know if their presence will contribute to New Zealand's interests. The importance of border security has increased, due to the nature of current security threats. A secure New Zealand border also enhances the international security environment.
Safety and security includes ensuring that non-citizens are of good health and character. Onshore compliance and enforcement activity (like ensuring migrants have lawful work permits) also helps to manage safe workplaces and protect pay and conditions for New Zealanders. Compliance and enforcement activity supports the integrity of the immigration system by ensuring that migrant workers are legally entitled to work.
Migrants and visitors stimulate New Zealand's sustainable economic growth. Migrants have global skills, knowledge and connections that are transferred to our workforce. Their ideas and capital can foster industrial and technological innovation, increase labour utilisation and improve productivity. Visitors generate employment and foreign exchange in our tourism and education industries.
Immigration complements the range of labour market responses available for skill and labour shortages. It can ease business constraints and assist with workforce development.
Migrants contribute to building strong and cohesive communities and assist with social development. This is particularly achieved through family reunification, including the partners of New Zealand citizens and permanent residents. Migrants enrich the social and cultural fabric of New Zealand by increasing our diversity.
At the same time, migrants can present challenges for our country's identity and unity that need to be carefully managed. For immigration to help establish strong communities in New Zealand, it is important that the impact on existing communities, including Maori communities, is considered. A supportive inclusive environment ultimately assists migrants to settle well and maximises their economic and social contribution.
New Zealand has an important role to play as a good international citizen. This means fulfilling our international obligations, including those under the Refugee Convention, the Convention Against Torture, and the International Covenant on Civil and Political Rights. New Zealand also has special commitments in the Pacific region. The high value placed on human rights by New Zealand society may mean that New Zealand wishes to go beyond simply meeting its minimum international obligations.
Being a good international citizen is important to New Zealand's reputation as a country that is committed to advancing global issues. New Zealand enjoys positive world-wide recognition of its treatment of refugees. New Zealand's reputation can impact on the willingness of other countries to develop economic and social connections with us.
International cooperation is critical for an effective immigration system. New Zealand is a small, geographically isolated country. We need to work closely with other countries and form strategic bilateral and multilateral alliances to advance our interests. An important part of cooperation is information sharing. This can advance New Zealand's security interests and help deter illegal immigration activity, such as people smuggling and trafficking.
New Zealand benefits from cooperation through the opening up of access to international trade and labour markets and by facilitating the ability of New Zealanders to travel overseas. A key country, in this respect, is Australia, with whom New Zealand has shared a long history of reciprocal access.
The purpose of New Zealand's immigration legislation is not set out in the current Immigration Act. Purpose statements can clearly establish the intent of the legislation and guide interpretation in a manner consistent with what Parliament intended.
Purpose statements need to be drafted carefully. Identification and interpretation of New Zealand's interests, and the weight given, may be subject to legal challenge. People challenging immigration decisions may also seek to use a purpose statement to delay departure. These risks could be mitigated by having a high-level, guiding purpose statement rather than specific objectives.
Australia has a clear purpose statement in its Migration Act 1958, which is to: “regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”
Canada's Act goes further than this and states 19 specific objectives, including: “to permit Canada to pursue the maximum social, cultural and economic benefits of immigration,” and “to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada”.
Canada's legislation also states that it is to be construed and applied in a manner that, among other things, complies with international human rights instruments to which Canada is signatory.
There have been numerous cases of people contesting Canadian immigration decisions on the basis they were inconsistent with the objectives in Canada's Act. For example, the Act's reference to complying with international human rights instruments has been argued to apply to a broader range of obligations than was intended. The exclusion of certain persons has also been argued to be inconsistent with the objective of reuniting families in Canada.
New Zealand's Corrections Act 2004 provides a useful model, as it must also recognise competing interests – the safety of the community and the rehabilitation of offenders. The Corrections Act refers to the purpose of the Corrections system, which implies something broader than the legislation. Similarly, the Fisheries Act 1996 recognises different interests by stating that its purpose is to “provide for the utilisation of fisheries resources while ensuring sustainability”.
For the reasons discussed above, it is proposed that a carefully drafted purpose statement should be included in the legislation. This would help guide interpretation of the Immigration Act.
3.1 Key questions
Any legislative review needs to clearly establish what principles are to underpin the development of the new legislation. Principles can guide the policy development process, which, in turn, shapes the legislation. The principles that are to underpin the development of the new immigration legislation are currently considered to be:
Immigration decision-making processes need to be reasonable, consistent and proportionate to the interests involved. This includes initial immigration decisions about whether a person may enter or stay in New Zealand and any review, appeal or expulsion decisions. As interests differ depending on the type of decision being made, “fairness” requirements are likely to be different for a decision to refuse a visitor visa offshore and a decision to expel a New Zealand resident.
The immigration system must be capable of providing quality final decisions. This means having robust decision-making processes that do not provide for ongoing review and appeal. This principle is particularly relevant to the discussion in Section 7: Access to review and appeal.
New Zealanders, migrants and visitors want immigration decisions to be made in a timely manner. This means having logical streamlined processes in place that enable decisions to be made as quickly as possible. Efficient processes are required across the immigration system.
It is essential that legislation is accessible by being simple, clear and logical. Legislation creates rights, confers powers and imposes duties and obligations. It must therefore be expressed in a way that is understood by the individuals who are affected by it.
3.2 Key question
The Immigration Act is intended to be framework legislation. It provides the high-level authority to regulate the entry and stay of non-citizens. It contains the powers of the Minister of Immigration to develop immigration policy and sets the framework for immigration decision-making.
In particular, the Immigration Act gives the Minister of Immigration the power to set residence and temporary entry policy. This means all the criteria for allowing temporary and permanent entry and stay are determined by the executive government and contained in operational policy. This provides the flexibility to adjust policies as required. The way the Immigration Act works is set out in Figure 1, Section 1: Overview (page 6).
While the Immigration Act does provide a broad framework, it is also prescriptive in certain places. In areas relating to detention, removal and deportation, where individuals' rights are at risk, prescriptive legislation is useful. In other areas, prescriptive legislation can make it difficult to be responsive. Detailed requirements are prescribed in a number of places throughout the current Immigration Act, which means the government cannot be so readily responsive to changing needs.
Canada has framework legislation, in that the high-level objectives, powers and obligations are set out in the primary Act. The detailed immigration policy criteria and processes are provided in their regulations and policy manual. Some aspects of their Act are prescriptive. For example, the Act contains some family policy rules. New Zealand's current legislation sits closest to the Canadian model.
Similarly, the United Kingdom has a high level of detail set out in its regulations and “policy rules”. The legislation is relatively complex, as it is contained in seven different Acts.
Ireland is undertaking a fundamental review of its immigration legislation and policy. It has expressed interest in adopting a “framework” approach, with the detail set out in regulations and policy, similar to New Zealand's.
Australia has highly prescriptive legislation. Australia considers that this allows more precise delivery of the immigration programme and less scope for appeal (although large volumes of appeal are experienced through the court system). This means the legislation is very complex and the legislation and regulations must be constantly updated.
LAC Guidelines provide that the separation between legislation and regulations or policy should generally be between principle and detail. Detail or technical issues may therefore be delegated to regulations or operational policy.
Any fundamental enabling provisions should be located within the primary legislation. The executive government can then determine the detailed policy settings. This is consistent with broad framework legislation.
It may also be beneficial to include significant policy (or “bottom lines”) where they are unlikely to change over time. For example, current policy criteria that prohibit people from being in New Zealand could be included in the Immigration Act. Character policy concerning “risk to New Zealand's reputation” currently sits outside the Immigration Act but could be more appropriately located in the primary legislation. This is further explored in Section 6: Exclusion and expulsion.
There are benefits from both framework and prescriptive legislation. Framework legislation is more likely to achieve the desired principle of being understandable and accessible, while providing the necessary flexibility to respond to change. Prescriptive legislation provides for certainty and transparency, which are particularly desirable where there are direct impacts on an individual's rights.
Immigration legislation needs to be responsive and flexible enough to deal with the uncertain and changing nature of the immigration environment (including economic conditions and the security environment). It would not be practical for Parliament to deal with the large volume of detailed and technical immigration matters currently set out in operational policy.
It is proposed that the new Immigration Act should be largely framework legislation that is understandable and accessible and responsive to change. In places it will need to be prescriptive, however, particularly where this impacts on individual rights.
On this basis it is proposed that certain key powers in the current Immigration Act must be retained. In particular, the power of the Minister of Immigration to make immigration policy is considered to be crucial for effective and efficient immigration management that is responsive to New Zealand's needs. Secondly, this review considers removing some detail from the Immigration Act, to allow the immigration system to be more responsive. These considerations are discussed further in the relevant sections of this discussion paper.
Finally, in other places in the legislation there is insufficient detail, inhibiting transparency. This review considers the usefulness of adding some significant aspects of current policy to the Immigration Act, such as health and character requirements for travel to and entry into New Zealand. This would support a fair immigration system and effective and efficient processes. New or revised immigration policy may be required in places, to support the new legislation.
3.3 Key question