Consultation
Immigration Act Review: Background Paper
Chapter Eight: Third Parties
Executive summary - Chapter 8 Third party obligations
Proposals - Employer obligations and penalties
I propose to continue employer obligations so an employer must not either knowingly or without reasonable excuse, employ (or maintain the employment of) a non-citizen who is not entitled to work and that holding an Inland Revenue Department (IRD) tax code declaration IR330 form would no longer constitute a reasonable excuse.
I propose that an employer would have a reasonable excuse for employing a non-citizen without entitlement to work if they do not know that the non-citizen is not entitled, and have taken reasonable steps to determine the non-citizen's entitlement.
I propose:
EITHER, Option A
- that the Bill enable the Department to disclose that an identifiable, non-citizen prospective employee is entitled to work, and the duration of that entitlement with a potential employer (without explicit consent from the prospective employee)
OR, Option B
- to retain the status quo, whereby the Department requires the explicit consent of a non-citizen to disclose if they are entitled to work, and the duration of that entitlement.
Status quo - Employer obligations in the 1987 Act are the same as the proposals above but holding an IR330 form signed by them is a reasonable excuse. Because of this, employers are not required to take reasonable steps to check entitlement, and prosecutions for unlawfully employing a non-citizen have not been made. Relying on the form effectively enables employers to bypass their obligations.
Discussion paper and submissions - Sixty five percent of 62 organisations and 80 percent of 42 individual submitters supported providing a stronger legislative basis for employer responsibilities. The New Zealand Association for Migration and Investment (NZAMI) supported the proposal "because the current system does not allow sufficient measures for enforcement of employer's responsibilities". Some employer organisations, such as Business New Zealand (Business NZ), felt that any strengthening of obligations in the Bill would be unfair. Many submitters commented that the Department should be able to share immigration status information with prospective employers.
Comment - The use of unlawful workers can deny opportunities for lawful workers and undermine working conditions. While obligations on employers will remain the same under these proposals, changes to the reasonable excuse are intended to provide stronger incentives for employers to comply.
Requiring reasonable steps to establish work entitlement is not intended to make the employment process more difficult. Guidance would be developed by the Department in consultation with business and employer stakeholders. This approach has been supported by Business NZ and will be responsive to different employment scenarios.
If work entitlement information could be shared, the Department could develop an electronic system that enabled a non-citizen's work entitlement information to be disclosed, with appropriate safeguards, such as requiring employers to register with the Department, and to provide identifying information about the non-citizen that could not generally be expected to hold without consent. The information provided to an employer would also be limited to work entitlement, and duration. Specific information on immigration status would not be disclosed.
If entitlement to work, and the duration of that entitlement, can only be shared with explicit consent, the cost of compliance with employer obligations is likely to be higher, for the Department and the prospective employer, and this may impact negatively on non-citizens.
Proposals - Education provider obligations and penalties
I propose that an education provider must not either knowingly or without reasonable excuse, enrol (or maintain the enrolment of) a non-citizen who is not entitled to study but that an education provider does not commit an offence for enrolling, or maintaining the enrolment of a non-citizen child in compulsory education.
I propose that an education provider would have a reasonable excuse for enrolling a non-citizen without entitlement to study if they:
- do not know that the non-citizen is not entitled, and
- have taken reasonable steps to determine the non-citizen's entitlement.
I propose that the strict liability offence of, without reasonable excuse, enrolling a non-citizen who is not entitled to study can result in a maximum fine of $30,000 on conviction and that the offence of knowingly enrolling or continuing to enrol a non-citizen who is not entitled to study can result in a maximum fine of $50,000 on conviction.
Status quo - Education providers must not knowingly enrol or continue the enrolment of a non-citizen who is not entitled to undertake a course of study. The penalty for non-compliance with this obligation is a fine of up to $2,000 on conviction.
Discussion paper and submissions - Over three-quarters of 76 submitters supported the introduction of a flexible offences and penalties regime for education providers. Many commented that it was needed to motivate education providers to meet their obligations. The NZAMI commented that a "fast, responsive and effective system would benefit international students and aid in ensuring that there is fair competition between education providers". The New Zealand Qualifications Authority was also supportive. The discussion paper did not propose specific penalties and no comments were made on levels of fines.
Comment - The offences for education providers would be a more appropriate incentive for them to comply with their obligations. They should not create compliance costs as education providers will have access to enrolment entitlement details through the Ministry of Education's ENROL database (an enrolment register).
The maximum level of penalties proposed provides the courts with an appropriate framework to fine education providers for offences at a proportionate level now, and in the future. While the specific penalties were not proposed in the discussion paper, anecdotal feedback from the education sector showed support for a higher penalties regime. The sector expressed concerns that a small number of "bad apples" brings the whole education export sector into disrepute.
Proposal - Carrier obligations and penalties
I propose that the obligations on carriers including the provisions that require them to check immigration documentation, comply with the Advance Passenger Processing system (APP system) and provide Passenger Name Record data (PNR data), are retained in the Bill with amendments:
- to enable the immigration information and documentation that carriers are required to check and provide to the Department to be specified in regulations
- so that the Department is able to access PNR data for 14 days prior to the arrival of a craft, on the day of arrival, and for 14 days after the craft's arrival, and
- to clarify the obligation on carriers to remove refused entry non-citizens, unauthorised crew and those being deported from New Zealand, on the first available flight.
I propose to introduce an instant fine system for strict liability offences where carriers fail to comply with obligations to check immigration documentation, comply with the APP system and provide PNR data and that:
- for failure to check prescribed immigration documentation where the security of the border is not compromised (for example, failure to check evidence of sufficient funds) there is a fine of $1,000 for a person in charge of a craft or for a carrier
- for failure to check prescribed immigration documentation where the security of the border is compromised (for example, allowing a non-citizen to travel without a valid visa) there is a fine of $2,500 for a person in charge of a craft, or up to $5,000 for a carrier, and
- for failure to comply with other APP system and PNR data related obligations there is a fine of $2,500 for a person in charge of a craft or $5,000 for a carrier.
I propose that the Bill continue the ability of the Department to prosecute a carrier for breach of obligations with a maximum penalty on conviction of up to $25,000 for a person in charge of a craft or $50,000 for a carrier, and/or imprisonment not exceeding three months.
Status quo - The 1987 Act requires carriers to ensure that all passengers boarding a craft have appropriate immigration documentation, including a passport. Carriers are also required to provide information on passengers including their name and date of birth. This information and documentation is specified in the 1987 Act. The 1987 Act enables the chief executive to request PNR data for a passenger who intends to board a craft within 24 hours prior to and after the arrival of the craft on which that passenger intended to or did travel to New Zealand.
Currently, a carrier can delay removal of a non-citizen if it considers that a seat on a craft is "not available". Airlines sometime delay removal where an economy seat is not available, but seats remain in other classes.
There is no instant fine system for carriers who fail to meet their obligations in the immigration system. The Department may seek prosecution of a carrier for breach of obligations with a maximum penalty on conviction of up to $20,000.
Discussion paper and submissions - Seventy percent of 70 submitters supported making minor amendments to the legislation to clarify carrier obligations, including NZAMI and the Civil Aviation Authority but there was little substantive comment on the proposal. Airlines were not supportive of the proposals that may increase their obligations, or create new penalties.
There were mixed views on the proposal to introduce an instant fine system in the submissions with approximately 45 percent of 70 submitters, such as NZAMI, indicating support and, approximately 35 percent opposed. There was more support for the proposal from individuals than organisations. Airlines including Qantas and Air New Zealand, and airline representatives such as Board of Airlines Representatives New Zealand did not support the proposal.
Comment - Enabling the immigration information and documentation carriers are required to check and provide to be set in regulations would ensure greater flexibility in the future. The proposal to extend the timeframe to access PNR data will enable the Department to apply immigration filters to support effective and efficient entry decisions over a longer period, and is consistent with timeframes available to Customs.
While the 1987 Act provides strong statutory sanctions for carriers who fail their obligations, prosecutions have been rare. Offences are dealt with through a voluntary system of penalty-free infringement notices. While relative compliance with obligations is more than 98 percent, the absolute number of prima facie breaches by carriers is high. In 2005/06, the Department issued 1,557 informal infringement notices. About 200 of these breaches resulted in an undocumented non-citizen or a non-citizen who presented a potential security risk arriving at the border. It is reasonable for a carrier to expect financial penalties for non-compliance as they operate in an international environment where pre-boarding checks are normal and instant fines are a standard sanction.
Proposals - Data matching and disclosure of information
I propose that the existing provisions for data matching continue between the Department and the Department of Corrections (Corrections) to determine the immigration status of any person sentenced to imprisonment, and also with Justice for fines enforcement purposes.
I propose that the Bill:
EITHER
- continue data-matching provisions with the agency responsible for the administration of the Social Security Act 1964 with amendments to enable the chief executive of the Department to supply:
- information on the date of deportation, in relation to those non-citizens deported from New Zealand, and
- the outcome of a protection claim determination, and any determination of a protection appeal for protection claimants.
OR
- continue data-matching provisions with the agency responsible for the administration of the Social Security Act 1964 as per the status quo.
I propose to continue to enable the Department to disclose specified information to an overseas agency, body, or person involved in the prevention, detection, investigation, prosecution, or punishment of immigration or other offences, or border security.
Status quo - The proposals for data matching with Corrections and Justice and the proposal for disclosure of information to international agencies mirror the status quo. The data match with the agency responsible for the Social Security Act 1964 does not allow information to be shared on deportation, or outcomes of protection claims.
Discussion paper and submissions - These proposals for change were not consulted upon as they arose subsequent to the consultation process. Many submitters on the third party proposals in the discussion paper expressed the view that disclosing immigration status is necessary to ensure that health, welfare and other publicly funded services are only provided to those who are eligible for these services.
Comment - The data matches with Corrections and MoJ operate successfully and in accordance with the Privacy Act 1993. The above proposal will ensure that data matches with the Ministry of Social Development, to determine a non-citizen's entitlement or eligibility for any benefit, and the amount of that benefit, can be effective for protection claimants, and that benefit payments can be ceased where appropriate including when a non-citizen is deported from New Zealand.
The Department is able to disclose specified information to help prevent, identify or respond to violations of New Zealand law, or the law of the state the information is being disclosed to. Disclosure of this information contributes to the security of international borders through systems such as the Regional Management Alert System (RMAS) which target the detection of invalid travel documents.
Proposals - Disclosure to verify eligibility for publicly funded services
I propose that specific provisions are included in the Bill to enable the Department to disclose immigration status information about an identifiable non-citizen to publicly funded service providers who require this information to determine eligibility (without explicit consent from the non-citizen), for example to:
- determine their entitlement to publicly funded health services where the non-citizen is unable or unwilling to provide this information, or
- assess a non-citizen's liability to repay the cost of publicly funded health services they may have accessed.
I propose that the Bill specify that individual agreements could be made with specific publicly funded service providers where immigration status information was required to determine eligibility. Note that the Department would not capture any information on the non-citizen in the process of disclosing this information.
Status quo - The Department must have the explicit consent of a non-citizen to share immigration status information.
Discussion paper and submissions - Approximately 65 percent of submitters expressed the view that disclosing immigration status is necessary to ensure that health, welfare and other publicly funded services are provided only to those who are eligible. Education New Zealand also commented on the negative effect that those who illegally access services have on others and similar comments were made by Pacific communities during the stakeholder dialogues.
The Human Rights Commission expressed some concern for children whose unlawful parents may not seek required medical assistance or enrol them in school for fear of a negative immigration consequence.
Comment - The selected disclosure of immigration status information to publicly funded service providers may help the fair allocation of public resources and to manage the public debt. New Zealand Immigration application forms and New Zealand arrival cards signed by a non-citizen currently authorise certain information to be disclosed. There are limitations to the use of these forms and cards.
The Bill would specify that individual agreements could be made with publicly funded service providers where immigration status information was required to determine eligibility. If immigration status information could be shared, visa applicants would be informed of the potential sharing of this information to service providers.
Publicly funded service providers receiving immigration status information would be bound by the Privacy Act 1993. The proposal could help reduce the estimated $6.1 million worth of annual debt owed to District Health Boards by non-citizens.
The Department would not capture any information on the non-citizen in the process of disclosing this information. This would address the concerns raised by the Human Rights Commission and others in submissions about negative consequences for minors.
Purpose
This chapter discusses the recommendations on third parties including:
- Employer obligations and penalties
- Education provider obligations and penalties, and
- Carrier obligations and penalties.
It also discusses the recommendations on data-matching and disclosure of information.
Status quo
There are obligations for a range of third parties in the immigration system including employers, education providers and carriers[14]. They complement the obligations of non-citizens to have lawful entitlement to travel to, enter and stay in New Zealand and to comply with their visa and permit conditions.
Carrier obligations focus on their critical role in checking passengers and providing the Department of Labour (the Department) with information that contributes to maintaining the security of the border. The Department also exchanges information with national and international agencies. On an international level, this contributes to the management of global flows of people. Nationally, it allows agencies to manage publicly funded services.
Rationale for proposals
The current obligations on third parties generally appear to be appropriate but the legislation lacks appropriate incentives for employers, education providers and carriers to comply. The proposals in this chapter maintain the premise that third parties do, and should continue to, support New Zealand's immigration interests and the immigration system's integrity, but equally ensure they continue to benefit from an efficient and effective system. They seek to create incentives for third parties to comply with their obligations.
Along with the proposals for third parties, this chapter seeks to continue the provisions for disclosure of information internationally for investigations into immigration or other offences, and to support border security. It also seeks to continue the current provisions for data-matching with onshore agencies.
The chapter seeks to enable information on immigration status to be shared with specified third parties to enable them to fulfil their obligations in the immigration system and to ensure that only those non-citizens with entitlement receive publicly funded services.
Employer obligations
Proposals
It is proposed to continue the employer obligations imposed by the Immigration Act 1987 (the 1987 Act) in the Immigration Bill (the Bill), that is, an employer must not:
- either knowingly or without reasonable excuse, employ (or continue to employ) a non-citizen who is not entitled to work, or
- exploit (in a specified way) a non-citizen who is not entitled to work.
IR330 form
It is proposed that holding an Inland Revenue Department (IRD) tax code declaration IR330 form would no longer constitute a reasonable excuse for employing a non-citizen without entitlement to work.
Positively checking entitlement to work
It is proposed that an employer would have a reasonable excuse for employing a non-citizen without entitlement to work if they:
- do not know that the non-citizen is not entitled, and
- have taken reasonable steps to determine the non-citizen's entitlement.
It is proposed that an employer can be deemed to know a non-citizen does not have entitlement to work if they have been informed of this by an officer in the preceding 12 months.
It is proposed that employers would not commit an offence by honouring the termination clause of an employment agreement, as per the status quo.
Status quo
Employer obligations under the 1987 Act are the same as the proposals above. Not knowing the non-citizen was not entitled to work, and holding an IR330 form signed by them is the statutory definition of a reasonable excuse for employing a non-citizen without entitlement to work. Because of this, employers are not required to take reasonable steps to check entitlement, and prosecutions for unlawfully employing a non-citizen have not been made. Relying on the form effectively enables employers to bypass their obligation to only employ non-citizens with entitlement to work.
Discussion paper and submissions
Sixty five percent of 62 organisations and 80 percent of 42 individual submitters supported providing a stronger legislative basis for employer responsibilities. The New Zealand Association for Migration and Investment (NZAMI) supported the proposal "because the current system does not allow sufficient measures for enforcement of employer's responsibilities and that leaves migrants vulnerable to exploitation".
Approximately 25 percent of organisations and 15 percent of individuals opposed any change. Some employer organisations, such as the New Zealand Retailer's Association and Business New Zealand (Business NZ), felt that any strengthening of obligations in the Bill would be unfair.
IR330 form
Responses to the proposed removal of the IR330 form as a statutory reasonable excuse were mixed, with approximately 55 percent of 104 submitters supporting the proposal. The New Zealand Council of Trade Unions (CTU) commented that the "sighting of an employee's tax code declaration is too low a threshold" to be a reasonable excuse. The NZAMI also supported its removal. Business and employers groups, including Business NZ, supported the use of the IR330 form.
Positively checking entitlement to work
There was a difference between individual and organisational responses to the proposal to require employers to take a more proactive approach to checking entitlement to work. Approximately 80 percent of 42 individuals, compared to approximately 60 percent of 62 organisations, expressed support. The New Zealand Law Society (NZLS) noted that if "an employer has an obligation then the employer should comply with that obligation". The key concern expressed by the NZLS and other submitters, including Business NZ and the Wellington Chamber of Commerce, related to employers' ability to comply, along with potential compliance costs.
Comment
Low unemployment and skills shortages have created an environment where there are incentives for overstayers to maintain their unlawful presence in New Zealand and for non-citizens to work without entitlement. Estimates indicate that approximately 9,000[15] overstayers may be working in New Zealand. There are also an unquantifiable number of non-citizens lawfully in New Zealand but working without entitlement to do so. For example, a number of non-citizens on visitor's permits may be working unlawfully.
The use of unlawful workers can deny opportunities for lawful workers to gain employment and can undermine conditions for all workers. This is a concern noted by the CTU. The use of unlawful workers also undermines the immigration system. For example, where student permit holders work more than the 20 hours per week they are entitled to, they are treating their student permit as a de-facto work permit and accessing the labour market in a way that was not intended.
IR330 form
While obligations on employers would remain the same under these proposals, changes to the reasonable excuse are intended to provide an incentive for employers to comply with their immigration obligations. As noted in the discussion paper, the IR330 form, which provides employers with a reasonable excuse, is used for tax purposes when a person starts a new job. The form is a self-assessed declaration of tax liability and entitlement to work made by an individual.
Limited verification of the IR330 form's accuracy is undertaken by IRD, and no verification is undertaken of the declaration of entitlement to work by the Department which has no ownership of the form. Relying on the form effectively enables employers to bypass their immigration obligations.
Positively checking entitlement to work
Taking reasonable steps to establish work entitlement is not intended to make the employment process more difficult. Guidance on what constitutes reasonable steps would be developed by the Department in consultation with business and employer stakeholders. This approach has been supported by Business NZ and will be responsive to a range of different employment scenarios. For example:
- A recruitment agency could include a check box about entitlement to work on registration forms and request proof of that status from a prospective employee. They could hold that proof on file.
- In the fruit picking industry, where instances of unlawful work are relatively common, it may be reasonable to expect an employer to hold a copy of a non-citizen's passport or visa details for the length of their employment to prove their entitlement to work.
- Where an employee presented a resume with details of continuous education and previous employment in New Zealand, an employer could check qualifications and references, and keep a record of this on file.
- Retaining a copy of a New Zealand birth certificate, passport or citizenship certificate would generally be evidence of reasonable steps to establish a person was a citizen.
No penalty for honouring termination clauses of employment agreements
Carrying over the provisions that ensure employers are not penalised for honouring termination clauses of employment agreements would ensure consistency between employment and immigration law.
In developing these proposals, the Department considered a system of matching work entitlement to an IRD tax number. This was suggested in stakeholder dialogues and in the public submissions. An IRD tax number is not linked in any way to work entitlement and is not responsive to a change in immigration status by non-citizens. Tax numbers are a requirement for all those with income, not just for those who work.
Reducing compliance costs for employers
Proposals
It is proposed that:
EITHER, Option A
- the Bill enable the Department to disclose that an identifiable, non-citizen prospective employee is entitled to work, and the duration of that entitlement with a potential employer (without explicit consent from the prospective employee)
OR, Option B
- retain the status quo, whereby the Department requires the explicit consent of a non-citizen to disclose if they are entitled to work, and the duration of that entitlement.
Status quo
The Department requires the explicit consent of a non-citizen to disclose if they are entitled to work, and the duration of that entitlement.
Discussion paper and submissions
The discussion paper proposal to develop an internet or fax-back system for registered employers to check entitlement information received support. The Australian internet system discussed below was referred to by submitters as an example of such a system. Submissions reiterated that if any changes were made to employers' obligations, steps would need to be taken to reduce compliance costs for employers fulfilling their obligations. Many submitters commented that the Department should be able to share immigration status information with prospective employers.
Comment
Option A
If work entitlement information could be disclosed to prospective employers without explicit consent, the Department would develop an electronic system that enabled employers to verify entitlement to work, and the duration of that entitlement via the internet. The system could be similar to that in Australia where an employer registers with the Department of Immigration and Multicultural Affairs and, by providing specific details of a prospective employee, can receive instant notification of their entitlement to work.
Requiring a prospective employer to register with the Department before they could use the electronic system would help to safeguard the non-citizen's personal information. The Department would be able to record and monitor employers' access to the system, and based on registration information, investigate any indicators of abuse.
Requiring employers to provide a range of information about a prospective employee that they could not generally be expected to have obtained without the consent of the non-citizen would also provide another safeguard.
The information that the internet system would disclose to a prospective employer would be limited, providing another safeguard. Only entitlement to work, and the duration of that entitlement would be disclosed. Information about a non-citizen's immigration status would not be provided.
Employers receiving information would be bound by the Privacy Act 1993 in their management and use of the information, and the Department would inform them of this when disclosing any information. Visa applicants would be informed of the potential sharing of work entitlement information with prospective employers, for example, on the Department's website, visa application forms, arrival cards, and on any other appropriate information.
If a visa applicant is applying for a visa to New Zealand that incorporates some type of entitlement to work, it is not unreasonable to expect that information about that entitlement could be provided to a prospective employer. Having provision to disclose information may also benefit non-citizens who, for example, may not have evidence of their visa.
If agreed, the cost of developing an internet system, including appropriate electronic safeguards, will be absorbed as part of the wider IT changes in the Department’s new business model. If the new business model funding is not agreed, a separate costing exercise would be undertaken.
Option B
If entitlement to work, and the duration of that entitlement, can only be shared with explicit consent, the cost of compliance with employer obligations is likely to be higher, for the Department and the prospective employer. This may impact negatively on non-citizens seeking employment in New Zealand by reducing the incentives for an employer to consider them for a vacant position.
While consent to share information could be incorporated into some visa application forms, not all applicants are currently required to complete these forms, and technology may further reduce their use in the future. The Department could still develop a facilitative system, such as a fax-back system, where a prospective employer and employee signed consent for the information to be disclosed. The Department would have to manually process the request for information, including verifying that a non-citizen has actually provided their consent. This process would require ongoing resources, and instant access to information could not be guaranteed. The discussion paper noted that this process creates an administrative burden for the potential employee, employer, and the Department.
Penalties for employers
Proposals
It is proposed that a maximum fine of $10,000 on conviction is maintained for the offence of, without reasonable excuse, employing a non-citizen who is not entitled to work.
It is proposed that a maximum fine of $50,000 on conviction is maintained for the offence of knowingly employing or continuing to employ a non-citizen who is not entitled to work.
It is proposed that committing an offence of exploitation would continue to attract a maximum penalty of up to $100,000 and/or seven years imprisonment.
Status quo
These proposals mirror the status quo.
Discussion paper and submissions
The current offences for employers were discussed in submissions. There was some comment, in particular from Business NZ, that the current penalties were high and that they did not support any increase.
Comment
The penalties for employers provide clear and proportionate responses to offences where it is found that an employer does not have a reasonable excuse for failing to confirm work entitlement or has knowingly continued to allow a non-citizen to work without entitlement.
The Department would continue to have administrative discretion to prosecute employers. For example, the first time an employer is found to have employed an unlawful worker the Department may wish to work with them to prevent a similar offence occurring. This discretion will be particularly useful during the establishment phase of the new Act.
Retaining an exploitation offence supports New Zealand's obligations under the United Nations Convention against Transnational Organised Crime by providing a disincentive to smuggle and/or traffic migrants. The penalty for exploitation offences sends a message that exploitation is unacceptable.
Education provider obligations
Proposals
It is proposed that an education provider must not either knowingly or without reasonable excuse, enrol (or maintain the enrolment of) a non-citizen who is not entitled to study.
It is proposed that an education provider would have a reasonable excuse for enrolling a non-citizen without entitlement to study if they:
- do not know that the non-citizen is not entitled, and
- have taken reasonable steps to determine the non-citizen's entitlement.
It is proposed that an education provider can be deemed to know that a non-citizen does not have entitlement to study if they have been informed of this by an officer in the preceding 12 months.
In order to support the withdrawal of New Zealand's reservation on the United Nations Convention on the Rights of the Child (CRC), it is proposed that an education provider does not commit an offence for enrolling, or maintaining the enrolment of, a non-citizen child in compulsory education.
Status quo
An education provider commits an offence if they knowingly enrol or continue the enrolment of a non-citizen who is not entitled to study. They are deemed to know if they have been informed of this in writing by an immigration officer in the preceding 12 months.
Discussion paper and submissions
The discussion paper proposed cross referencing the Ministry of Education's Code of Practice for Pastoral Care of International Students (the Code) in the Bill to highlight the importance of education provider obligations. Although the proposal received support, further work showed that it would be an unnecessary duplication of obligations (which are broader that just those required under immigration legislation).
Comment
There has been a considerable increase in the value of the education export sector, and in the number of non-citizens entering New Zealand to study, since the 1987 Act was passed. Ten thousand student visas were approved in 1990/91, compared with 99,000 in 2005/06. In 2005/06, the sector earned approximately $2.21 billion. Education providers play a key role in the sector by ensuring that only non-citizens entitled to study do so.
Significant numbers of non-citizens studying without entitlement would impact on the government's ability to control the mix, distribution, and number of students. There would also be negative impacts on Crown revenue where those without entitlement accessed subsidised courses.
The proposed offences for education providers would be an appropriate incentive for them to comply with their obligations in the immigration system. The obligations should not create compliance costs as education providers will have access to enrolment entitlement details through the Ministry of Education's ENROL database (an enrolment register). Providers are also already required to hold entitlement details for students by the Code.
The proposal that education providers do not commit an offence for enrolling, or continuing the enrolment, of a non-citizen child in compulsory education supports lifting New Zealand's current reservation on CRC. This proposal follows from Cabinet's 'in principle' decision to end the limitation on access to publicly funded education services for children unlawfully in New Zealand [CAB Min (05) 41/3 refers].
Education provider penalties
Proposals
It is proposed that the offence of, without reasonable excuse, enrolling a non-citizen who is not entitled to study would result in a maximum fine of $30,000 on conviction.
It is proposed that the offence of knowingly enrolling or continuing to enrol a non-citizen who is not entitled to study would result in a maximum fine of $50,000 on conviction.
Status quo
The current maximum fine for knowingly enrolling or continuing to enrol a non-citizen who is not entitled to study is a maximum of $2,000 on conviction.
Discussion paper and submissions
Over three-quarters of 76 submitters supported the introduction of a flexible offences and penalties regime for education providers. Many commented that such a regime was needed to motivate education providers to meet their obligations and deter them from exploiting students. The NZAMI commented that a "fast, responsive and effective system would benefit international students and aid in ensuring that there is fair competition between education providers". The New Zealand Qualifications Authority was also supportive.
The discussion paper did not propose specific penalties and no comments were made on an appropriate level of penalty. The 15 percent of submitters opposed to the introduction of a penalties regime for education providers expressed concern about the compliance costs for education providers.
Comment
The penalties proposed for education providers increase the current penalty of $2,000 that could be sought on conviction but that has never been applied and has proven to be inadequate. The cost of seeking conviction for such a minimal fine is not a viable option for the Department.
The maximum level of penalties proposed provides the courts with an appropriate framework to fine education providers for offences at a proportionate level now, and in the future. While the specific penalties were not proposed in the discussion paper, anecdotal feedback from the education sector showed support for a higher penalties regime. The sector expressed concerns that a small number of "bad apples" brings the whole education export sector into disrepute.
As with employer penalties, the Department would continue to have administrative discretion to prosecute. For example, in the first instance an education provider is found to have enrolled a non-citizen without entitlement the Department may wish to work with them to prevent a reoccurrence. This discretion will be particularly useful during the establishment phase of the new Act.
Carrier obligations
Proposals
It is proposed that the obligations on carriers in the 1987 Act, including the provisions that require them to check immigration documentation, comply with the Advance Passenger Processing system (APP system) and provide Passenger Name Record data (PNR data), are retained in the Bill with the amendments proposed below.
Checking of immigration documentation and the APP system
It is proposed that the immigration documentation that carriers are required to check be specified in regulations.
It is proposed that the immigration information that carriers must check and provide to enable the APP system to operate be specified in regulations.
PNR data
It is proposed that the Department be able to access PNR data for 14 days prior to the arrival of a craft, on the day of arrival, and for 14 days after the craft's arrival.
It is proposed that the Department be able to access PNR data for the purposes of identifying and managing immigration risks.
Removal of non-citizens without entitlement to enter or remain
It is proposed that carriers continue to be responsible for the cost of detaining, maintaining and removing a non-citizen:
- who has travelled to New Zealand with them and been refused entry, and
- crew member who has remained in New Zealand without authorisation.
It is proposed that the Bill clarify the obligation on carriers to remove refused entry non-citizens, unauthorised crew and those being deported from New Zealand, on the first available flight.
Status quo
Checking of immigration documentation and the APP system
The 1987 Act requires carriers to ensure that all passengers boarding a craft have appropriate immigration documentation, including a passport, visa, evidence of ongoing travel arrangements, and sufficient funds. Carriers are also required to provide the Department with information on passengers including their name, date of birth, nationality, sex and passport number. The documentation that carriers are required to check, and the information they are required to provide is generally specified in the 1987 Act.
PNR data
The 1987 Act enables the chief executive of the Department to request PNR data for a passenger who intends to board a craft within 24 hours prior to and after the arrival of the craft on which that passenger intended to or did travel to New Zealand.
Removal of non-citizens without entitlement to enter or remain
While a carrier is obliged to remove a non-citizen on the first available flight, a carrier can delay removal of a non-citizen if it considers that a seat on a craft is "not available". Airlines sometimes delay removal where an economy seat is not available, but seats remain in other classes.
Discussion paper and submissions
Seventy percent of 70 submitters supported making minor amendments to the legislation to clarify carrier obligations, including NZAMI and the Civil Aviation Authority (CAA) but there was little substantive comment on the proposal. Airlines were not supportive of the proposals that may have increased their obligations, or created new penalties.
The current legislative requirement to check for evidence of tickets for onward travel and funds is not supported by Air NZ or Qantas who commented that the "travel industry is undergoing a step change, with booking increasingly being made on the net and ticketless travel making inroads". The proposal to remove this requirement from the legislation may therefore receive support from airlines and airline representatives.
The proposal to clarify obligations to remove non-citizens without entitlement to remain was not in the discussion paper as it arose through the development of the proposals in Chapter Ten: Monitoring and detention. The proposal may not receive support from airlines but will ensure the expedient departure of non-citizens being deported from New Zealand.
Comment
Checking of immigration documentation and the APP system
The proposals above support carriers' critical role in checking and providing the Department with information about passengers who are seeking to travel to New Zealand. Specifying the immigration information and documentation carriers are required to check and provide in regulations would ensure greater flexibility in the future and responds to airlines' submissions.
Greater flexibility would enable the Department to respond appropriately to advances in international travel. For example, the International Air Transport Association is seeking to eliminate paper tickets by early 2008.
PNR data
The short period of time in which the Department can access PNR data under the 1987 Act hinders the Department's ability to apply immigration filters to support effective and efficient immigration decisions. The proposed amendment to extend the timeframe in which PNR data can be accessed by the Department should not impose any costs on carriers who are providing the data in the same way and for the same length of time to the New Zealand Customs Service (Customs).
To avoid unnecessary duplication of resources, implementation of the proposal will be explored in conjunction with Customs who have invited the Department to place staff at their National Targeting Centre for this purpose.
Removal of non-citizens without entitlement to enter or remain
The obligations on carriers to remove non-citizens reinforce their obligations not to bring non-citizens to New Zealand who have no entitlement to enter. The obligations also oblige carriers to take responsibility for their crew.
The requirement that a carrier remove a non-citizen being deported ensures that the non-citizen is not held in immigration detention longer than is necessary and is an important contributing factor to the effectiveness of the deportation system. While delays in boarding can address valid safety concerns, delays based on inconvenience are not acceptable. This proposal clarifies the status quo for carriers.
Penalties for carriers
Proposals
Instant fine system
It is proposed to introduce an instant fine system for strict liability offences where carriers fail to comply with obligations to check immigration documentation, comply with the APP system and provide PNR data.
It is proposed that for failure to check prescribed immigration documentation:
- where the security of the border is not compromised (for example, failure to check evidence of sufficient funds) there is a fine of $1,000 for a person in charge of a craft or for a carrier, and
- where the security of the border is compromised (for example, allowing a non-citizen to travel without a valid visa) there is a fine of $2,500 for a person in charge of a craft, or $5,000 for a carrier.
It is proposed that for failure to comply with other APP system and PNR data related obligations there is a fine of $2,500 for a person in charge of a craft or $5,000 for a carrier.
Prosecution
It is proposed that the Bill allow the Department to prosecute a carrier for breach of obligations with a maximum penalty on conviction of up to $25,000 for a person in charge of a craft or $50,000 for a carrier, and/or imprisonment not exceeding three months.
Failure to remove non-citizens without entitlement to enter or remain
It is proposed that the current maximum penalty on conviction of up to $10,000 for a person in charge of a craft, and $20,000 for a carrier, for failing to remove a non-citizen refused entry to New Zealand, or being deported from New Zealand is retained.
Status quo
There is no instant fine system for carriers who fail to meet their obligations in the immigration system. The Department may seek prosecution of a carrier for breach of obligations with a maximum penalty on conviction of up to $10,000 for a person in charge of a craft or $20,000 for a carrier, and/or imprisonment not exceeding three months.
The current maximum penalty on conviction for failing to remove a non-citizen is up to $10,000 for a person in charge of a craft, and $20,000 for a carrier, as proposed above.
Discussion paper and submissions
There were mixed views on the proposal to introduce an instant fine system with approximately 45 percent of the 77 submitters, such as NZAMI, indicating support and, approximately 35 percent opposed. There was more support for the proposal from individuals than organisations. Business NZ suggested that minor amendments to clarify legislation be made but that the current voluntary system of penalty-free infringement notices continue.
Airlines including Qantas and Air NZ, and airline representatives such as Board of Airlines Representatives New Zealand (BARNZ) did not support the proposal. BARNZ commented that an instant fines system may impact negatively on the good relationship between airlines and the Department. The CAA commented in their submission that if the "system of infringement notices and fines contributed to the security of civil aviation, the CAA would not be against such a proposal being given further consideration".
Concern was expressed by the United Nations High Commissioner for Refugees (UNHCR) "that carrier companies should not be penalised for transporting people who are seeking international protection from persecution". This concern was reiterated in a number of other submissions made by human rights groups and ethnic organisations.
Comment
Instant fine system
While the Act provides strong statutory sanctions for carriers who fail in their obligations, prosecutions have been rare. Most offences have been dealt with through a voluntary system of penalty-free infringement notices where the Department requests that carriers investigate any breach of obligation and then provides education to prevent recurrence.
Breaches of carrier obligations generally result from a carrier not running an APP check or overriding an APP notification without approval, or from data entry errors by check-in agents. Anecdotal comment suggests that carriers apply less vigilance to non-citizens travelling to New Zealand compared to places where instant fines are imposed.
While relative compliance with obligations is more than 98 percent, the absolute number of prima facie breaches by carriers is high. In 2005/06, the Department issued 1,557 informal infringement notices. About 200 of these breaches resulted in an undocumented non-citizen, or a non-citizen who presented a potential security risk, arriving at the border. In these circumstances, the non-citizen may be detained impacting on them, and generating associated compliance costs.
It is reasonable for a carrier to expect financial penalties for non-compliance. Carriers operate in an international environment where pre-boarding checks are normal and instant fines are a standard sanction. Provisions for carriers to contest any infringement would be provided.
The Department would have administrative discretion to enforce the fines, allowing flexibility in some cases. For example, discretion may be used where an airline transported an asylum seeker who presented at check-in with a false identity and documentation. This discretion will be particularly useful during the establishment phase of the new Act.
Prosecution
Retaining the ability to seek the conviction of a carrier who fails to comply with its obligations and increasing the penalties on conviction will reduce the risk of trivialising the seriousness of carrier offences through the low level of instant fines being proposed. It will enable the Department to take appropriate action if a significant breach occurred, or if a single airline was consistently breaching obligations.
Failure to remove non-citizens without entitlement to enter or remain
Retaining the ability to prosecute airlines who fail to remove non-citizens with no entitlement to remain in New Zealand reinforces the importance of this obligation in supporting the integrity of the immigration system and effectiveness of the monitoring and detention system.
Data matching and disclosure of information
Proposals
Data matching with government agencies
It is proposed that the existing provisions for data matching continue between the Department and:
- the Department of Corrections (Corrections) to determine the immigration status of any person sentenced to imprisonment, and
- the Ministry of Justice (Justice) (or the agency responsible for the enforcement of fines) for fines enforcement purposes.
It is proposed that the Bill:
EITHER, Option A
- continue data-matching provisions with the agency responsible for the administration of the Social Security Act 1964 with amendments to enable the chief executive of the Department to supply:
- information on the date of deportation, in relation to those non-citizens deported from New Zealand, and
- the outcome of a protection claim determination, and any determination of a protection appeal for protection claimants
OR, Option B
- continue data-matching provisions with the agency responsible for the administration of the Social Security Act 1964 as per the status quo.
Disclosure of information to international agencies
It is proposed to continue to enable the Department to disclose specified information to an overseas agency, body, or person involved in the prevention, detection, investigation, prosecution, or punishment of immigration or other offences, or border security.
Status quo
The proposals for data matching with Corrections and Justice and the proposal for disclosure of information to international agencies mirror the status quo.
The data match with the agency responsible for the Social Security Act 1964 does not allow information to be shared on deportation, or on protection claimants.
Discussion paper
These proposals for change were not consulted in the discussion paper as they arose out of departmental consideration of information exchange capabilities in the 1987 Act and requirements for the future. Many submitters on the third party proposals in the discussion paper, however, expressed the view that disclosing immigration status is necessary to ensure that health, welfare and other publicly funded services are only provided to those who are eligible for these services.
Comment
Data matching with government agencies
Data matching with other government agencies enables the fair allocation of public resources, supports the maintenance of law and the security of the border. The data matches with Corrections and Justice operate successfully and in accordance with Privacy Act 1993.
The purpose of the data-match with the agency responsible for the administration of the Social Security Act 1964 is to verify entitlement or eligibility of any person for any benefit and the amount of that benefit. Currently, the chief executive may supply information in relation to non-citizens who may be in New Zealand unlawfully or who are in New Zealand on a temporary permit. Information on non-citizens who have been deported from New Zealand cannot be supplied, nor can information on the outcomes of protection claims. This limits the effectiveness of the provisions.
Amendments to this data-match would be used to ensure that state funded benefits or support cease where a non-citizen is deported and that any benefit paid to protection claimants is done so within the provisions of the Social Security Act 1964.
Disclosure of information to international agencies
The Department is able to disclose specified information to help prevent, identify or respond to violations of New Zealand law, or the law of the state to which the information is being disclosed. Disclosure of this information enables the Department and international agencies to manage the flow of people around the world. It contributes to the security of international borders through systems such as the Regional Management Alert System (RMAS).
RMAS allows the detection of invalid travel documents either at airport check-in counters before passengers board flights, or before their arrival in the destination country, depending on the country of departure. As of mid August 2006 a total of 99 lost, stolen or otherwise invalid New Zealand passports have been detected by the RMAS system since it was enacted on 1 April 2006.
Disclosure to verify eligibility for publicly funded services
Proposals
It is proposed that the Bill include specific provisions to enable the Department to disclose immigration status information about an identifiable non-citizen to publicly funded service providers who require this information to determine eligibility (without explicit consent from the non-citizen), for example to:
- determine their entitlement to publicly funded health services where the non-citizen is unable or unwilling to provide this information, or
- assess a non-citizen's liability to repay the cost of publicly funded health services they may have accessed.
It is proposed that the Bill specify that individual agreements could be made with specific publicly funded service providers where immigration status information was required to determine eligibility.
The Department would not capture any information on the non-citizen in the process of disclosing this information.
Status quo
The Department must have the explicit consent of a non-citizen to share immigration status information with publicly funded service providers for the purpose of determining eligibility.
Discussion paper and submissions
Approximately 65 percent of 54 organisations and 41 individuals indicated support for this proposal. Many who supported the proposal expressed the view that disclosing immigration status is necessary to ensure that health, welfare and other publicly funded services are only provided to those who are eligible. One submitter commented on the impact non-citizens accessing services without entitlement have on those who do "play by the rules". Education New Zealand also commented on the negative effect that those who illegally access services have on others and similar comments were made by Pacific communities during the stakeholder dialogues.
The Human Rights Commission (HRC) expressed some concern for children whose unlawful parents may not seek required medical assistance or enrol them in school for fear of a negative immigration consequence.
Comment
Along with data matching between the Department and other government agencies currently provided for, the selected disclosure of immigration status information to publicly funded service providers who require this information to determine eligibility may help the fair allocation of public resources and to manage the public debt incurred by non-citizens.
New Zealand Immigration application forms and New Zealand arrival cards signed by a non-citizen currently authorise certain information to be disclosed to assess an individual's entitlement to services, such as health services. There are limitations to the use of these forms and cards as a mechanism for gaining consent as not all non-citizens are required to complete either or both forms.
The Bill would require the agreements to specify the purpose for providing the information and that the information disclosed would be related to entitlement to access specific services only, and not be any other information. This would provide a safeguard for non-citizens.
Publicly funded service providers receiving information would be bound by the Privacy Act 1993 in their management and use of the information. The Department would inform them of this. Also, the Department would not capture any information on the non-citizen in the process of disclosing this information. This would address the concerns raised by the HRC and others in submissions about negative consequences for minors whose parents were unlawfully in New Zealand did not want to seek medical assistance due to the fear of a negative immigration consequence.
If immigration status information could be shared as proposed, visa applicants would be informed of the potential sharing of this information with service providers, for example, on:
- information provided about different visas on the Department's website
- visa application forms
- arrival cards, and
- any other appropriate documentation.
The Department could establish an electronic system similar to, and combined with, that proposed for employers. It would include all appropriate electronic safeguards. As noted earlier, the cost of developing a system will be absorbed as part of the Department’s new business model..
An electronic system would help to reduce the significant number of inquiries to the Department that currently occur, in particular from District Health Boards (DHBs) seeking to confirm entitlement to medical services. Facilitating the access of information to DHBs could help reduce the estimated $6.1 million worth of debt owed by non-citizens.