REGULATORY IMPACT STATEMENT – IMMIGRATION ACT: CORE PROVISIONS

Statement of the Public Policy Objective

To maintain framework legislation that provides a strong foundation for the government to manage immigration in New Zealand’s interests.

Statement of Feasible Options

Purpose of Immigration Bill

Status Quo, Policy Problem and Magnitude: The purpose of the Immigration Act 1987 (the 1987 Act) is described as “An Act generally to reform the law relating to immigration, and in particular to remove the need for persons who are in New Zealand unlawfully to be dealt with by way of criminal prosecution.” The substantial 1999 amendments to the 1987 Act had sought, among other things, to “Improve the effectiveness of the removal regime for persons unlawfully in New Zealand by streamlining the procedures involved”. The purpose statements in the 1987 Act are unsuitable for an entirely new Bill because they are descriptive of the content of particular aspects of legislative changes or note that these are reform measures.

The Bill’s purpose statement should clearly establish its overall intent, and guide interpretation. The current purpose statements are not suitable for this. While New Zealand’s immigration-related interests may remain constant at the broadest level, specific policies and the relative and absolute prominence given to particular interests will vary over time. A purpose statement with too much detail could reduce flexibility and has the potential to open particular policy settings to litigation.

Preferred Option: It is proposed that the Bill include a purpose statement. It is proposed that the purpose of the Bill is to:

1. allow for immigration to New Zealand that ensures that New Zealand has the skills and labour it needs
2. contribute to the security of New Zealand’s border
3. uphold New Zealand immigration-related international obligations
4. facilitate the settlement of migrants and refugees, and
5. balance the rights of individuals with the obligation of the government to manage immigration in the national interest, as determined by the Crown.

Net Benefit of the Proposal: The proposed approach responds to submitters’ key concerns including international obligations and individual rights, while maintaining government control. The proposed approach would allow the legislation to assist in the facilitation of the travel to, entry and stay of the permanent and temporary migrants that New Zealand wants, while ensuring fairness and transparency in maintaining the safety and security of the border.

Excluded non-citizens

Policy Problem and Magnitude: In managing immigration in New Zealand’s interests, most applications for visas and entry permission are assessed against policy that is set outside the primary statute. In regard to character issues, however, there is a case for up-front barriers against the entry of non-citizens who, because of past or likely future convictions, actions or associations put New Zealand at risk, and who should not normally expect to be able to enter New Zealand.

Status Quo: The 1987 Act includes a list of circumstances in which a non-citizen may not be granted a permit or exemption to be in New Zealand. Some relate to offending and entry bans resulting from previous removals or deportations. Others relate to where the Minister of Immigration has reason to believe that specified groups of non-citizens give rise to risks to New Zealand’s national security, public order, public safety or national interests. These criteria are statutory prohibitions on entry and do not carry any appeal rights.

Alternative Option 1: Consideration was given to creating a combined list of exclusion criteria and deportation criteria. This would have provided a single set of character-related standards that would see a non-citizen excluded from New Zealand and that would be used to assess whether a non-citizen in New Zealand should be required to leave. This option was not pursued because it was considered that those people who had been given some sort of permission to be in New Zealand warranted consideration under criteria that specifically recognised their existing links, and should be given appeal rights in many cases. In contrast, exclusion criteria would be applied to non-citizens who had no visa, or who were at the start of their engagement with the immigration system. New Zealand has made little or no commitment to these people.

Alternative Option 2: A further option was to establish a high-level exclusion power in legislation with the detailed criteria specified in policy. This would have enhanced flexibility for the government by allowing exclusion criteria to develop over time in response to varying risks. This approach could, however, have reduced clarity for potential applicants about what the exclusion criteria were at any given time. It would also have blurred the current useful distinction between the exclusion criteria, which are statutory criteria applied without appeal, and policy based criteria. Character policy criteria can be set at varying levels for different classes of applicant and can include policy guidance on when exceptions to character rules should and should not be made.

Preferred Option: The preferred option is to continue to set exclusion criteria in legislation, rather than in policy, because this provides strong and clear prohibitions. The statutory exclusion criteria would continue to be supplemented with character policy criteria contained in Immigration Instructions. Exclusion criteria would, as under the 1987 Act, constitute a prohibition under the statute itself, without appeal. The delegable ministerial power to waive the application of the exclusion criteria would remain, to be used in exceptional cases and not as a de facto appeal system. As with the 1987 Act, exceptional circumstances would not be defined in statute.
The criteria relating to offending remain unchanged. The criterion relating to previous deportations or removals has been amended to include any travel and entry bans under other statutes, for example, entry bans made by regulations under the United Nations Act 1946 to give effect to United Nations sanctions. This would clarify that these bans can be given effect under immigration legislation, without the inflexibility of listing specific statutes. It would also allow bans established in other legislation to have an immigration effect without requiring an additional assessment of each individual case.

The criteria based on an assessment of the likelihood of threat to New Zealand are broadened as to the circumstances when they arise and by the addition of “risk”, allowing action to be taken where individual non-citizens are not immediate threats in themselves but are an integral part of a wider threat. For example, a non-citizen could be providing logistical or communications support that was harmless in itself but was an essential component of a wider terrorist plan. The descriptions of what is at risk (national security, public order, and public interest) remain unchanged. In the 1987 Act, these areas are narrowed by being linked to a specific type of person as their source. For example, a threat to the public interest is currently a ground for exclusion only if it arises from non-citizens who belong to criminal organisations. It is proposed to increase the effectiveness of these criteria by removing the specific source of the risk.

The current criterion based on a likelihood of committing offences under the Crimes Act 1961 and Misuse of Drugs Act 1975 is replaced by a provision based on the likelihood of committing any offence that is punishable by imprisonment in New Zealand. Excluding non-citizens on the grounds of likely offending offers protection for New Zealand from the offending and related costs, but there is no clear rationale for focusing only on the current two acts. Basing the provision on the penalties existing across all New Zealand statutes provides a broadly coherent relative measure of the seriousness of all types of offending. The likelihood of committing offences punishable only by fines would not trigger exclusion. The proposal would require the decision-maker to identify that there was good reason to believe that a specific offence was likely to be committed, and to confirm that this offence would be punishable by imprisonment.

Exclusion provisions would not apply to residents or permanent residents, who would be assessed under separate deportation criteria, and appeals, if they became liable for deportation.

Net Benefit of the Proposal: The proposal enhances the government’s powers to exclude without appeal those non-citizens whose presence presents a risk or threat to New Zealand. This helps to ensure that the migrants and temporary entrants selected by New Zealand are of benefit to New Zealand. It provides a strong and effective immigration component to the government’s wider strategies on border management, criminal justice and national security. It is possible that some non-citizens who would not come within the existing exclusion criteria would come within the wider coverage of the proposed provisions.

Statement of Consultation Undertaken

Stakeholder Consultation: On character exclusion criteria, submissions focused on the need for transparency on the content of the criteria and when and how they would be applied. There was some concern about the use of classified information to make exclusion decisions (see Chapter Seven).

Government Departments/Agencies Consultation: The Ministry of Foreign Affairs and Trade noted its preference for a broader purpose statement that included mention of New Zealand’s role as a good international citizen or implementing New Zealand’s international obligations. The Ministry of Justice notes that the addition of “risk” to “threat” in regard to some exclusion criteria lowers the threshold for exclusion.