REGULATORY IMPACT STATEMENT – IMMIGRATION ACT: Decision-making

Statement of the Public Policy Objective

To ensure that the immigration decision-making processes and immigration decision-makers can be efficient, flexible and responsive.

Statement of Feasible Options

Sponsorship and sponsors

Status quo, Policy Problems and Magnitude: The Immigration Act 1987 (the 1987 Act) requires sponsors to be natural persons meaning organisations cannot be sponsors. This limits the way that sponsorship can be used as a mechanism for facilitating the entry of applicants who may otherwise be declined a visa.

The 1987 Act provides a legislative base for temporary sponsorship only. The way sponsorship is used is determined by Government immigration policy (GIP) and Government residence policy (GRP) which provides for residence sponsorship. Under GIP, sponsorship can be requested from any temporary applicant. Under GRP, sponsorship can currently be requested under parent, adult children and adult sibling policy. Sponsorship is used to manage risk and may reduce the number of non-citizens who fail to comply with their visas, or access services to which they are not entitled.

A sponsor must undertake: to ensure that adequate accommodation in New Zealand is and continues to be available for their relatives; to provide accommodation during the first 24 months of their relatives' residence in New Zealand if necessary; to provide financial support during the first 24 months of their relatives' residence in New Zealand if necessary; and to repay any costs to the Crown which result from their failure to meet their obligations as a sponsor and acknowledge that if those costs are incurred they become a debt due to the Crown. Sponsors who are refugees are only required to provide accommodation.

Preferred option: It is preferred that the legislation enables any applicant to be required to have a sponsor, rather than just referring to sponsorship for temporary applicants, and that a sponsor can be a natural person or an organisation.

Net benefit of preferred option: The proposal would benefit government by providing a legislative base for sponsorship to be requested from either temporary or residence applicants. Enabling sponsorship by organisations would benefit government by allowing the flexible use of sponsorship to manage risk in the immigration system.

Incorporating both temporary and residence sponsorship provisions in the legislation will clarify the high level sponsorship requirements for both applicants and sponsors. Applicants could then make informed decisions on whether to apply for a visa if sponsorship may be imposed, and sponsors could make informed decisions on whether to agree to conditions imposed.

Greater flexibility in the use of sponsorship would benefit applicants who may otherwise be declined visa for New Zealand. If they were sponsored, they may be granted a visa. Natural sponsors will continue to benefit as those they seek to support may be able to enter New Zealand. Organisations could benefit, for example, where an employer sponsors workers to fill specified job vacancies or cultural organisations sponsor a non-citizen to participate in a special event.

Expression of Interest and Invitations to Apply

Status quo, Policy Problems and Magnitude: Provisions in the 1987 Act for Expressions of Interest (EOI) and Invitations to Apply (ITA) are linked to managing residence applications. This may reduce the ability of the Department of Labour (the Department) to manage demand for particular temporary visa categories and to respond to the government’s priority of choosing the migrants New Zealand wants and needs.

Preferred option: The provisions for EOI and ITA be included in the Bill without the limitation that they apply to residence applications only. The provisions could then be used to manage any temporary or residence application type.

Net benefit of preferred option: Removing the limitations on EOIs and ITAs would benefit government by allowing greater flexibility in managing applications in the future. It would allow business planning to respond to changing demands for changing visa categories.

An effective departmental system of managing applications would also assist applicants in managing their individual applications. Fulfilling the requirements of an application could be staggered, along with any cost incurred, for example, a non-citizen could wait until they received an ITA before committing to the expensive of a health exam that was required with their application.

Delegation of ministerial powers

Policy Problems and Magnitude and Status quo: The 1987 Act contains some powers of the Minister of Immigration (the Minister) that are not delegable. Many of these will cease to be relevant if the proposals in the Act review are agreed. The two key non-delegable powers not addressed in other chapters are the power to certify Immigration Instructions and the power to make exceptions to GRP.

Limiting the power to make exceptions to GRP to the Minister contributes to the Minister’s workload. The Minister receives over 4,000 personal representations each year. Some of these are from applicants seeking to by-pass regular decision-making processes, others are from applicants who may have been through the decision-making process and are in unique circumstances that warrant further consideration. Requiring the Minister to consider cases that could be approved by the Department limits the ability of decision-makers to be responsive in circumstances that warrant deviation from established rule.

Alternative option: An alternative option is to remove the individual decision-making powers of the Minister. This alternative is not preferred the ability of the Minister to intervene is seen as an important safeguard and was widely supported in submissions.

Preferred option: The Bill enables the Minister to delegate all immigration decision-making functions with the exception of certifying Immigration Instructions, making decisions based on classified information (as proposed in Chapter Seven: Using classified information) and suspending or granting waivers for up to three months, pending regulations (as proposed in Chapter Two: Visas).

Net benefit of preferred option: This proposal would benefit the government and the Minister by reducing the Minister’s workload. It would allow the Minister to decide who the power could be delegated to and how it should be used.
The power would be of benefit to the Department and to applicants in those cases that genuinely warrant consideration due to their unique circumstances. An appropriate outcome could be achieved for such applicants without the need to decline an application and seek intervention from either the appeal tribunal or the Minister.

Electronic decision-making

Status quo, Policy Problems and Magnitude: The 1987 Act requires immigration or visa officers to make decisions, which limits the use of available and future technologies in the decision-making process.

Alternative option: Third party decision-making. This option was not pursued on the basis that decision-making is a sovereign right of government that should not be delegated to third parties whose own interests may represent a conflict of interest.

Preferred option: The Bill enables electronic decision-making, with appropriate safeguards, such as the ability to reverse decisions made in administrative error, to enable the Department to consider an expanded use of technology in the future.

Net benefit of preferred option: The power would be of benefit to the Department by allowing it to investigate the use of technology to contribute to the decision-making process. For example, a system similar to Australia’s could be designed, where low-risk applicants can have their applications instantly considered and decided. This would be of benefit to New Zealand by allowing the system to be globally competitive and potentially increasing marketability for visitors, student and workers. [Withheld under the Official Information Act]. The speed at which decisions could be made would enable applicants to plan travel, work or study without requiring them to wait for decisions.

Statement of Consultation Undertaken

Stakeholders: Seventy percent of 92 submitters indicated support for establishing a stronger legislative basis for sponsorship.

A number of submitters expressed support for enabling organisations to act as sponsors with others expressing concern in the case of employers. These submitters considered that placing sponsorship obligations on employers could give them greater leverage over migrant workers. One submitter commented that the obligations and penalties for employers acting as sponsors should be clearly set out in the legislation.

Approximately 65 percent of 107 submitters considered that the power to make positive exceptions to residence should be delegable. Those submitters who opposed the proposal considered that only the Minister should have the power to make exceptions. Some concern was expressed, that exceptions made by the Department may be perceived as being motivated by bias or some form of discrimination. Other submitters felt that it may reduce transparency in decision-making.

Approximately 75 percent of organisations and just over half the individual submitters agreed that the legislation should enable decisions to be made electronically in the future. Submitters expressed concerns about the potential for error, the possibility that not all information would be taken into account, the lack of accountability for decisions and the impersonal nature of electronic decision-making. Some submitters considered that an immigration officer needs to be involved in making the final decision.

Government agencies: No significant concerns have been raised by other agencies consulted on these proposals.