Summary of proposals

The discussion paper suggests that the purpose of immigration legislation be:

• to regulate the entry, stay and removal of non-New Zealand citizens, in a manner that is in New Zealand's interests, and
• to provide for integrity in the immigration system.
• New Zealand's interests are described as:
• 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 discussion paper proposes the inclusion of a carefully drafted purpose statement in the legislation.

Submitter response

One hundred and twenty five submitters responded to one or more of these questions: 72 submitters responded on behalf of an organisation and 53 submitters responded as private individuals. Organisations that made submissions included immigration consultants, ethnic councils, refugee and migrant groups, human rights groups, law societies, community law centres, other community groups, businesses, business and industry representatives, airline representatives, union representatives, territorial authorities, government agencies, the Families Commission and two political parties.

Comments on question one

Just under half the organisations and approximately 75 percent of individual submitters who commented on the purpose of New Zealand's immigration legislation indicated that they agreed with the proposed purpose statement. Many submitters, particularly organisations, commented on the suggested purpose of the immigration legislation without expressing a clear yes or no response to the question asked. Approximately 10 percent of submitters indicated that they did not agree with the suggested purpose.

Many submitters considered that the suggested purpose statement is too narrow and does not reflect all of New Zealand's interests. To some extent, submitter comments on this question overlapped with comments on the statement of New Zealand's immigration-related interests (question two) and the principles that should underpin immigration legislation (section 3.2).

A number of submitters commented that the discussion of the purpose of immigration legislation places too much emphasis on border security and that sovereignty issues need to be balanced against individual human rights. Submitters considered that the purpose statement should refer to upholding the human rights of migrants and/or giving effect to New Zealand's obligations under international human rights conventions. One submitter noted that protection is the primary purpose for refugees.

We think the purpose statement should include "in a manner that is consistent with International Covenants & Conventions on Human Rights." Stating categorically NZ's stand on this basic issue we are a champion for, will allay the concerns of many that under certain circumstances, it will not be thrown to the wind. Security concerns should not push human rights and natural justice to the background. (Ora Limited)

Union representatives also emphasised the rights of migrants, as well as the need to protect the interests of New Zealand workers.

The CTU believes that any stated purpose in the Immigration Act, and any underlying definition of New Zealand's immigration-related interests, needs to be broadened to avoid use of immigration as a proxy for domestic training and skills development, to acknowledge the importance of a rights-based approach to migration and to recognise a wider range of international instruments (such as ILO conventions) in the area of migration. (Council of Trade Unions)

Some submitters considered that the purpose statement should state New Zealand's commitment to fairness, transparency and natural justice within the administration of the new immigration system. One submitter commented that one purpose of the legislation should be to encourage respect for the immigration system. Some submitters considered that reference should also be made to the Treaty of Waitangi and to the New Zealand Bill of Rights Act 1990.

Some submitters considered that the purpose statement should be more proactive and refer to generating economic growth, competing for potential migrants and/or maximising the benefits of immigration. One submitter suggested that the purpose of the legislation should be to facilitate the entry of people New Zealand wants rather than simply regulating it. Other submitters suggested that the purpose statement make reference to the economic, social and cultural benefits of immigration, alongside other considerations.

We disagree with the purpose statement as proposed. The purpose should instead be "to maximise the social, cultural and economic benefits of immigration." (Wellington Chamber of Commerce)

We are particularly keen to see consideration of "generating sustainable economic growth" as this is an aim which will impact on employment. This aim would also cover not only the talent we are endeavouring to secure for New Zealand employers but also the families that are associated with that talent. (Recruitment and Consulting Services Association)

A number of submitters commented that the purpose statement should affirm the importance of successful settlement in fostering development and growth. Some submitters suggested that support for strong and diverse communities, and/or maintenance of social harmony across communities be reflected in the purpose statement. Some submitters considered that reference be made to the importance of the family and/the well-being of children.

I think there should be a specific purpose on family well-being or family interests; there should be a wide definition of family used. Specifically with regard to international obligations - there should be a specific mention of humanitarian principles. There should also be a specific obligation to recognise the well being of children. (Individual submitter)

Some submitters suggested that the purpose statement include reference to the special relationship between New Zealand and Pacific Island nations. Some submitters suggested that reference be made to cultural diversity, multiculturalism and/or the rights of migrants to assert their cultural identity.

One submitter emphasised freedom of movement and suggested that the purpose of immigration legislation be "to facilitate freedom of movement to New Zealand, subject to the country's capacity to cope with visitors and immigrants without undue environmental, social or economic strain". Other submitters commented that the primary purpose of the legislation should be protecting the interests of the incumbent population and the "New Zealand way of life".

A number of submitters considered that the purpose statement should be kept brief. One submitter suggested that New Zealand follow the Canadian approach with a simple statement that "This is an Act in respect of immigration to New Zealand", and that the purpose is also in respect of granting refugee protection to people who are displaced, persecuted or in danger. The submitter considered that the Immigration Act should go on to list a number of objectives similar to Canada's Immigration and Refugee Protection Act 2001. Another submitter, on the other hand, considered that the purpose statement should be confined to regulation of the entry, stay and removal of non-New Zealand citizens alone, without any reference to New Zealand's immigration-related interests.

Comments on question two

Approximately 60 percent of organisations and 70 percent of individual submitters agreed that New Zealand's immigration-related interests are those suggested in the discussion paper. Almost 20 percent of submitters indicated partial agreement; less than 10 percent of submitters disagreed with the statement of New Zealand's immigration-related interests.

A number of submitters expressed concern at the weighting given to New Zealand's immigration-related interests. Some submitters considered that too strong an emphasis is placed on maintaining the safety and security of New Zealand. Other submitters commented that the discussion focuses on the balance between maintaining national security and generating economic growth, at the expense of the other objectives.

There is far too much emphasis placed on notions of "national security" when, in fact, there is little evidence that migrants pose any national security threat at all. (Individual submitter)

Despite identifying five broad areas of interest (safety and security, economic growth, strong communities, being a good international citizen and promoting international cooperation) the discussion paper marginalises the other three and reduces the primary issue to a trade-off between New Zealand's border security and national economic growth. (NZ Meat Workers and Related Trades Union)

Some submitters considered that "generating sustainable economic growth" is too narrow and that this interest should include promotion of social and cultural benefits as well. Submitters commented on the need to recognise the contribution of "non-economic" migrants.

The non-economic contribution of providing child care, releasing parents to work and provide stability is seldom factored in. The labour market is too narrow a focus. (Hutt Valley Community Law Centre)

A number of submitters commented on the interest of "establishing strong communities." Submitters expressed support for this objective and made various suggestions to expand it, including:

• changing the wording to "establish, maintain and enhance strong communities" or "establish, enrich and maintain strong communities"
• referring to "strong and inclusive communities"
• aiming to maintain the health of those communities
• reflecting the values of integration and family reunification, and
• making reference to diversity, for example by referring to "strong diverse communities" or "strong ethnically diverse communities", or by adding "demonstrating the value of diversity" as a specific interest.

Some submitters commented on the importance of social cohesion in establishing strong communities and promoting successful settlement. Some submitters suggested the addition of an additional interest along the lines of "contributing to social cohesion and national identity".

Other submitters expressed concern that the reference to strong communities is too broad. One submitter suggested that establishing strong communities should be conditional upon not imposing costs on other New Zealanders (through access to benefits and other social services). Another expressed concern that establishing strong ethnic communities may conflict with good settlement outcomes and integration into New Zealand society.

A number of submitters commented that "fulfilling New Zealand's role as a good international citizen" is too vague and should either include, or be replaced by, a reference to New Zealand's compliance with international human rights obligations and norms. As with the purpose statement, some submitters considered that express reference should be made to individual human rights. One submitter commented that "promoting international cooperation" should include international cooperation to promote, fulfil and uphold rights.

Some submitters expressed concern about the discussion paper's focus on New Zealand's interests and commented that the interests of others should also be a consideration, particularly in relation to human rights.

The discussion paper captures well New Zealand's immigration interests. However, the language is still skewed towards what is in New Zealand's interests, which shows itself up in the context of refugees. The refugee system should be more about offering protection to the displaced and persecuted than maintaining New Zealand's good international reputation. This is quite a different emphasis and the language of protection should have more prominence. It is also suggested that more emphasis be placed on the importance of family reunification of refugees. As with other sectors of the community, strong and stable refugee families are more able to contribute positively to social development of the wider community. (Wellington Community Law Centre)

A number of submitters considered that reference should be made to New Zealand's population interests. Some submitters considered that protection of the environment and ensuring that New Zealand does not accept more people than it can absorb should be key aims. Another suggested that age may become a more important consideration in the future.

There is no reference in the list to the need to serve what might be generally described as New Zealand's population control interests. For example, the age of potential migrants may become an increasingly important factor in immigration policy as New Zealand, and the rest of the developing world, faces the demands of an aging population. Goals of generating sustainable economic growth and establishing strong communities are not sufficiently broad enough to describe New Zealand's interest in endeavouring to ensure that there are sufficient numbers of working-age persons in the population. (New Zealand Association for Migration and Investment)

One submitter suggested that the statement of New Zealand's interests include "promoting and protecting New Zealand's special relationship with Pacific Island nations."

Comments on question three

Approximately 90 percent of submitters supported the inclusion of a purpose statement in the legislation. Submitters considered that a purpose statement would provide greater clarity on New Zealand's approach to immigration and assist in the interpretation of detailed legislative provisions and policy. Some submitters commented a purpose statement is particularly important in an area like immigration where there are significant human rights issues and a number of competing interests to be balanced.

A purpose statement is important in legislation as it can be used as a reference point for interpreting the provisions, regulations, and policy directives that follow. In the context of immigration, this is especially important as the legislation is balancing several competing factors: New Zealand's sovereign interests, international commitments, and the interests of migrants and refugees to whom the legislation is directed. (Wellington Community Law Centre)

A number of submitters commented that the purpose statement should be written in plain English and be easy to understand.

Some submitters considered that the purpose statement should be a high level statement, drafted as clearly and concisely as possible so that it is less likely to be subject to challenge. Other submitters considered that, while the purpose statement needs to be carefully drafted, it should be comprehensive in order to ensure Parliament's intent is clearly stated.

Legislative purpose and parliamentary intent should be transparent, accessible and not hidden from legal challenge. Legitimate legal challenge provides a fundamental balance and is a positive means of ensuring the integrity of the immigration system. It is a positive not a negative as seems to be suggested by some. If the various elements of the purpose of immigration legislation for New Zealand are carefully developed and defined they will not change. By stating these key elements, and so making its intention clear, Parliament arguably limits the opportunities for challenge provided by a more general statement. (New Zealand Law Society)

Less than five percent of submitters were opposed to the inclusion of a purpose statement in new immigration legislation. One submitter expressed concern that a purpose statement could reduce the effectiveness of the legislation and commented that the purpose should be inherent in legislative provisions and policies. Another considered that the purpose could change over time.

Summary of proposal

The discussion paper proposes that the following principles underpin the development of new immigration legislation:

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

Submitter response

Eighty seven submitters commented on the principles that should underpin immigration legislation. These included 48 submitters commenting on behalf of an organisation and 39 commenting as private individuals. Organisations that made submissions included immigration consultants, ethnic councils, refugee and migrant groups, human rights groups, law societies, community law centres, other community groups, businesses, industry representatives, airline representatives, union representatives, government agencies, the Families Commission and one political party.

Approximately half the organisations and 75 percent of individual submitters who commented on the principles that should underpin immigration legislation indicated that they agreed with the principles set out in the discussion paper. A further 10 percent of organisations and individuals indicated partial agreement to the principles. Many submitters, particularly organisations, commented on the principles that should underpin immigration legislation without expressing a clear yes or no response to the question asked. Less than five percent of submitters indicated that they did not agree with the proposed principles.

Many submitters expressed strong support for the principle of fairness underpinning the development of immigration legislation, with a number commenting that fairness should be the overriding principle and the basis of all immigration decision-making. Some submitters suggested that the principle should be expressed as "fairness to all" or "fairness and transparency".

Some submitters considered that there could be a tension between "fairness" and "effective decision-making" and commented that effective decision-making should not be about limiting avenues of appeal and review. Some submitters suggested that there be more emphasis on improving the quality of immigration decision-making.

There is a discrepancy in the Review material between the principle of "a fair immigration system", which is explained rather weakly as being liable to change in different circumstances, and the principle of "effective decision-making" which is explained as processes which do not allow for ongoing review and appeal. Our own understanding of a fair immigration system is one which has clearly defined rights of appeal and access to effective legal remedies. Equity - fairness - must be a significant principle. (Caritas Aotearoa New Zealand)

There ought to be concern at the manner in which effective decision-making is described at para 65 of the discussion paper. The emphasis appears to be on the making of decisions that are less susceptible to review and appeal. It would be more appropriate to describe effective decision-making in positive terms. Such decision-making should be consistent, well-reasoned, in accordance with established principles of natural justice, and decision makers should be fully accountable for their performance. (New Zealand Association for Migration and Investment)

A number of submitters commented that third parties such as businesses, employers, and airlines all have an interest in "efficient processes" and timely decision-making.

Carriers also want decisions to be made in a timely manner - particularly where these may involve a turnaround and the potential to delay the departure of the aircraft. (Board of Airline Representatives New Zealand)

One submitter commented on the principle of "understandable and accessible legislation", noting that it must also be readily implemented.

Some submitters suggested additional principles to underpin the development of immigration legislation. These included:

• the principles of natural justice
• the best interests of the child
• transparent operations
• consistency
• objectivity
• freedom from discrimination
• the value of diversity
• humanitarianism and the desire to be seen as principled global citizen
• commitment to the rights of individuals, and
• keeping the family unit together.

Education New Zealand commented that the principle of comparative advantage in immigration settings should underpin immigration legislation. It noted that immigration policy affects the international education industry by limiting the pool of prospective students and affecting the attractiveness of New Zealand as a study destination.

There is no doubt that immigration policy is one of the most important considerations in deciding where to undertake study in a particular country. Issues such as facilitating entry into the country, compliance costs and enforcement are all important factors. As is the political tone towards immigration. This also extends to work rights while in the country and pathways from study to permanent residency. (Education New Zealand)

Some submitters considered that the legislation should be based on a human rights approach. Submitters commented that this includes complying with relevant international standards, not discriminating on the grounds prohibited by the Human Rights Act 1993, ensuring applicants are treated with dignity and respect at every stage of the immigration process, observing the principles of natural justice and providing migrants with adequate protection.

Some submitters commented that the principles should be reflected throughout the legislation and its implementation. A number of submitters considered that principles should be stated in the legislation in order to maintain the "spirit" of the Immigration Act and guide immigration policy.

Inclusion of robust principles in the Act would ensure actual policy is protected from short term populist influences that tend to be reactionary. (Auckland City Council)

Summary of proposal

The discussion paper proposes that the new Immigration Act be largely framework legislation but that it be more detailed and prescriptive in some areas, particularly those areas that impact on individual rights.

Submitter response

Ninety two submitters responded to this question: 46 submitters responded on behalf of an organisation and 46 submitters responded as private individuals. Organisations that made submissions included immigration consultants, ethnic councils, refugee and migrant groups, human rights groups, law societies, community law centres, other community groups, businesses, industry representatives, a territorial authority, government agencies and the Families Commission.

Approximately 80 percent of submitters agreed that the Immigration Act should be largely framework legislation. Submitters considered that the legislation needs to be sufficiently flexible to accommodate future changes in immigration policy and that prescription should be restricted to areas that are absolutely fundamental and unlikely to change over time.

Many submitters commented that the legislation should set out clear principles and provide for the protection of individual human rights. Some submitters commented that immigration policy should be subject to the same principles as the primary legislation.

One model would be to establish a purpose statement, a statement of guiding principles and interests (including principles of interpretation where relevant), prescriptive provisions where necessary and formulae or guidelines setting the parameters for policy-making where discretion is allowed and policy is to be developed. (New Zealand Law Society)

It is recommended that the decision making framework set out in operational immigration policy needs to be set against a cornerstone of sacrosanct principles included in the Act. (Auckland City Council)

One submitter expressed the view that any provisions that impact on human rights that are not dealt with in legislation should be set out in regulations rather than in immigration policy so they are subject to Parliamentary scrutiny through the Regulations Review Committee.

A number of submitters considered that the legislation should either require or provide for consultation on immigration policy.

CASI suggests that the Immigration Act should contain a requirement that executive government have an open process for setting policy, e.g. consultation with interested parties or public submissions on draft policy. (Churches' Agency on Social Issues)

There should also be a provision in the Act that the Minister may consult with the communities in New Zealand on immigration and refugee protection policies and programmes, in order to facilitate cooperation and to take into consideration the effect that the implementation of the Act may have on New Zealand's communities. (Grey Lynn Neighbourhood Law Office)

Some submitters commented that other areas of the legislation may benefit from some prescription. One submitter gave the example of an applicant's need for certainty when s/he lodges an immigration application.

Persons applying for residence ought to know that policy and regulatory requirements relating to their application will not be changed by the Government after they have applied and paid an application fee. Retrospective changes in policy, particularly where they affect residence applications, can impact negatively on New Zealand's reputation in other countries. If there is to be certainty and transparency in the immigration system, there ought to be prescription as to matters such as the fixing of policy at the time an application is made. (New Zealand Association for Migration and Investment)

Other submitters commented that some of the proposals in the discussion paper are overly prescriptive. Some submitters commented that full consultation would be required on proposed areas of prescription in the new legislation.

Approximately five percent of submitters did not agree that immigration legislation should be framework legislation. One submitter commented that detailed provisions would provide greater certainty, transparency and clarity.

One submitter suggested that separate immigration and refugee law could be developed, and commented that practitioners already operate as if there are two discrete pieces of legislation in place.