Section 1 - Overview
 


1.1 Introduction

Immigration plays an important role in building New Zealand society and encouraging economic growth. Skilled and family migrants, business people, temporary workers, students and visitors make valuable contributions to our economy and strengthen our communities. Immigration also plays a role in fulfilling New Zealand’s international obligations.

At the same time, immigration raises complex challenges for New Zealand. Issues range from questions about our national identity and our role on the international stage, to the impact of immigration on the economy, labour market, social development, health, education, law and order, housing and transport infrastructure.

The government is reviewing the Immigration Act 1987 (the Immigration Act) to ensure that the legislation enables New Zealand to both facilitate the entry of the people New Zealand needs and effectively protect our border. The purpose of this document is to identify the key issues and seek your views on how they should be addressed.

1.2 The wider immigration change programme

Immigration is essential to New Zealand’s economy in a rapidly globalising world. Powerful forces are changing the way immigration works and the immigration system needs to respond to this.

The Immigration Act review is therefore part of a broader immigration change programme focusing on skills, security and settlement. The programme aims to improve the immigration system to ensure that:

The three interlocking components to the immigration change programme are:

The change programme as a whole will ensure that we have a modern immigration service, fit for the globally competitive environment of the 21st century. It will enable New Zealand to facilitate high-value, low-risk customers and effectively protect the border. This will provide a well-balanced and integrated framework that is focused on supporting people to connect and contribute. Taken together, the change elements will further the government’s goals of economic transformation, strong national identity, and security and opportunities for families.

Drivers for change

This immigration reform programme takes place within a changing global environment that presents opportunities and challenges. The current Immigration Act dates from 1987. There have been significant changes internationally in the last 20 years, including:

We need to reposition the immigration system to face these challenges. Diagram 1 below summarises the change programme, demonstrating how it is integrated with common drivers and goals.

Diagram 1: Summary of change programme and its environment
Summary of immigration change programme and its environment. Click for a larger version.

Full description of Diagram 1

Greater people flows around the world

New Zealand, like many parts of the world, has gone through a period of transformation over the past 20 years. Flows of people travelling and migrating have increased and diversified. Our international connections have increased through trade, tourism and business activity. Information about New Zealand has become more accessible, communication easier and travel cheaper.

To illustrate this growth, permanent immigration flows have increased significantly, from 8,500 approvals in 1985 to almost 49,000 in 2004/05. Temporary entry has experienced phenomenal growth over the same period, with visitor arrivals escalating from 690,000 to 2.4 million. The 21,400 temporary workers and students who arrived in 1985 is small compared to the 100,000 plus who entered in 2004/05. Tourism and international education feature in New Zealand’s top five largest export industries.

Greater competition for skills, talent and labour

Immigration is a key ingredient in a strong labour market that builds productivity, participation and skills. New Zealand employers, businesses and communities are seeing the benefits of both permanent migrants and people on temporary permits. Strong economic growth, ageing populations and shrinking fertility rates in the developed world have increased world-wide competition for people with skills as well as for unskilled labour.

Unemployment trends over the last 17 years illustrate the changes in our labour market. Unemployment rose sharply in the late 1980s, peaking at 10.3 percent in 1991. This compares with the current low of 3.6 percent. These changes have led to increasing pressure on immigration to help meet immediate skill and labour requirements.

Heightened risk and pressure on the border

Along with increasing competition and flows of people, there is the heightened threat of international terrorism, illegal migration and trans-national organised crime. These issues have sharpened the focus on security and the need to establish effective border controls and enforcement measures. Security measures need to complement an immigration system that facilitates the entry of high-value migrants and travellers.

A sharpened focus on security means it is increasingly important to be clear about our international human rights obligations. World refugee numbers have steadily fallen to around 9 million – a 25-year low. While refugee resettlement remains important, new challenges have arisen, including how we address a broader range of international obligations, such as the Convention Against Torture.

Increasing diversity and a sharper focus on settlement

Over the past two centuries, increasing numbers of migrants from Australia and Europe, followed by the Pacific and Asia, have settled in New Zealand. Immigration has shaped our ethnic diversity and remains a key contributor to New Zealand’s development today.

A combination of natural population growth and migration has increased our population from 3.3 million in 1986 to over 4.1 million today. In 1986, around 15 percent of the population was born overseas – by 2001, this had reached almost 20 percent.

Growing diversity raises particular challenges for New Zealand in terms of nation building.Achieving good settlement outcomes can continue to be an issue for subsequent generations of migrant and host communities. Settlement policy will become increasingly important as a means of ensuring integration.

It is important to ensure that the immigration system is optimally positioned to face these emerging challenges. The immigration change programme will ensure that we have a modern immigration service, fit for the globally competitive environment of the 21st century.

Responsive legislation

Responsive immigration legislation is the foundation of the change programme. Responsive legislation is required to accommodate changes in the global security environment and in social and economic conditions that motivate migrants’ behaviour. Immigration legislation needs to facilitate the entry of the high-value customers we need, while providing the framework to effectively protect the border. It needs to be able to respond to the current skills shortages, and to cope in times of high unemployment. The unpredictability of what lies ahead for New Zealand also reinforces the need for flexible legislation for the future.

1.3 The objectives of the Immigration Act review

The government is committed to ensuring that immigration legislation is clear, comprehensive and appropriate to New Zealand’s needs. The objectives of the review are to:

The government is particularly focused on both:

1.4 The scope of the Immigration Act review

Legislation not policy

This document reviews immigration legislation rather than immigration policy or operations. Immigration policy and operations are being reviewed as part of the wider immigration change programme discussed above.
Current legislation provides the high-level legal basis on which a person may be in New Zealand, the procedures to be followed and the powers of the Minister of Immigration and officials in administering and enforcing immigration rules. In particular, the legislation allows the Minister of Immigration to set immigration policy.

However, the Immigration Act review may question whether some matters currently in policy should be set out in legislation. New immigration policy may also be required in places to support the new legislation. The legislative framework is summarised in Figure 1 below.

Figure 1: Immigration legislation, regulations and policy
Immigration legislation, regulations and policy. Click for a larger version.

Full description of Figure 1

Part 4A of the Immigration Act – Special procedures in cases involving security concerns

Part 4A of the Immigration Act sets out the process for dealing with cases involving security concerns and, to date, has only been used in relation to Mr Ahmed Zaoui. Part 4A is outside the scope of this review and will be considered in a separate review once Mr Zaoui’s case is completed. Nothing precludes Part 4A or a revised Part4A being included in the final Bill.

1.5 What contribution will the Immigration Act review make to the change programme?

The immigration change programme will introduce changes that will:

The Immigration Act will contribute to both of these areas as summarised in the tables below.

Table 1: Facilitation, fairness and a system that is easier to use

Clear purpose and principles

Proposals

Benefits

The new legislation will have a clear purpose focused on New Zealand’s interests.

The new legislation will be underpinned by clear principles, including:

  • fairness
  • effective decision-making
  • efficient processes, and
  • understandable and accessible legislation.

This would help ensure the immigration system:

  • generates sustainable economic growth
  • establishes strong communities
  • fulfils New Zealand’s role as a good international citizen, and
  • supports international cooperation.

It would also ensure the immigration system is:

  • fair
  • effective
  • efficient, and
  • easy to use and understand.

A system that is flexible and easier to use

Proposals

Benefits

The new legislation will:

  • have a simplified, integrated “visa” system for travel to, entry and stay in New Zealand
  • allow delegation of power to make exceptions to residence policy (to selected senior immigration officials only)
  • enable third party and electronic decision-making for low-risk approvals
  • enable permit extensions for people who lodge a further application while lawfully in New Zealand
  • retain discretion for permits to be granted to persons in New Zealand unlawfully, and
  • provide a clearer basis for the role of third parties in the immigration system (including sponsors, employers, education providers and carriers).

This would ensure the immigration system facilitates the entry of high-value low-risk customers by being:

  • easy to use and understand
  • competitive in the global market
  • effective and efficient
  • up-to-date with technology
  • flexible for future changes, and
  • supportive of the role of sponsors, education providers, employers and carriers.

Fairness and transparency

Proposals

Benefits

The new legislation will:

  • ensure that immigration applicants are given potentially prejudicial information and reasons for decisions when appropriate
  • ensure appropriate access to review and appeal of immigration decisions, and
  • establish a single immigration and refugee appeals tribunal serviced by the Ministry of Justice.

This would:

  • ensure that the immigration system is fair and transparent
  • ensure access to independent appeal mechanisms
  • improve the effectiveness and efficiency of appeals processes, and
  • support those with real interests in being in New Zealand.

Being a good international citizen

Proposals

Benefits

The new legislation will:

  • clearly set out New Zealand’s international obligations under the Refugee Convention, the Convention Against Torture and the International Covenant on Civil and Political Rights
  • establish a single procedure for determining refugee and protection status, and
  • establish a single right of appeal.

This would ensure that the immigration system:

  • upholds New Zealand’s international obligations
  • is responsive to those in need
  • is efficient (does not require multiple decision-makers and years of delays), and
  • supports international co-operation.

Table 2: Integrity and security in the immigration system

Better tools for decision-making

Proposals

Benefits

Classified information could be used in decision-making by:

  • allowing classified information to be used in all immigration decision-making without releasing it to the applicant, and
  • establishing a process that allows for an independent appeal against onshore decisions that rely on classified information.

Officers will be able to:

  • require, use and store certain types of biometric information (such as photographs) to assist in immigration and refugee decision-making, and
  • request the voluntary provision of other types of biometric information (such as DNA) in a more limited range of circumstances.

This would prevent inaccurate decisions from being made because classified information could not be used.
It would ensure that:

  • all the facts of an application could be considered
  • character requirements are met, and
  • fairness standards are maximised.

This would:

  • allow immigration systems to keep up-to-date with advances in passport technology, and internationally agreed standards of identity verification
  • support an efficient and effective immigration system for those who are low risk and honest
  • help reduce the risks of identity fraud, and
  • contribute to New Zealand’s safety and security.

Streamlined expulsion and appeal mechanisms

Proposals

Benefits

A new expulsion system will be established that includes:

  • automatic liability for expulsion
  • streamlined review and appeal rights
  • a single humanitarian appeal test including exceptional circumstances and the public interest
  • a single immigration and refugee appeals tribunal, and
  • provision to expel protected people who have committed serious offences or are a risk to New Zealand (where this is consistent with the relevant international obligations).

This would:

  • improve clarity on what migrants’ obligations are and when a person is liable for expulsion
  • allow flexibility for a person to stay in special circumstances
  • reduce the time it takes to expel a person by reducing multiple appeal routes, while maintaining fairness, and
  • ensure New Zealand’s public interest and international obligations are taken into account.

The new appeals tribunal would:

  • improve efficiency and effectiveness in the appeals system, and
  • improve knowledge sharing and reduce the risks of backlogs.

Compliance and enforcement

Proposals

Benefits

The new Immigration Act will confer:

  • on immigration officers powers to require information to locate people unlawfully in New Zealand and people under investigation for breaches of the Immigration Act
  • on immigration and Customs officers powers to detain a person for immigration reasons in the absence of a Police officer for up to four hours, and
  • on immigration officers powers of search and entry for immigration reasons in the absence of Police or Customs officers.

The new legislation will:

  • enable information-sharing to assess entitlement to publicly-funded services, and
  • ensure appropriate provisions for third-party compliance.

Input on whether and how to share a person’s immigration status with other third parties, such as employers, is being sought from the public.

This would:

  • improve the efficiency and effectiveness of immigration investigations
  • close loopholes in the current system that reduce the ability of immigration officers to enforce compliance
  • ensure privacy and individual rights safeguards through appropriate training, delegations, and limitations on powers
  • ensure rules on access to publicly-funded services are upheld and entitlements protected
  • minimise tax-payer subsidies for those who unlawfully access services, and
  • ensure that those third parties that benefit from the immigration system fulfil their responsibilities.

Detention

Proposals

Benefits

The detention system will be adjusted to ensure an appropriate:

  • maximum period of detention without a warrant
  • review period for detention warrants
  • maximum period of detention
  • ability to detain when a person is at the border and in New Zealand, and
  • administrative power to support the Department of Labour’s current ability to designate places of detention outside Police or Corrections facilities.

This would:

  • ensure greater discretion for judges to determine if detention is appropriate
  • retain individual rights protections
  • allow for release on conditions and open detention to be used in cases where a person must currently remain in the community
  • better ensure that a person can be detained to allow for expulsion
  • reduce high administrative costs on the Department of Labour and the courts, and
  • improve our already high standards regarding immigration detention.

1.6 The process for gathering feedback

This discussion paper is available online. Hard copies can be requested from the Department of Labour. Web and contact details are set out below.

In May 2006, the Department of Labour will be meeting with stakeholders who have a particular interest in immigration legislation to discuss this document and collect feedback.

You are invited to comment on this discussion paper or on any other issues relating to immigration legislation. Where applicable, comments should make specific reference to the relevant section in this document and to the key questions raised.

To make it easy for you to comment on the Immigration Act review, an online feedback form is available at www.dol.govt.nz. Alternatively, comments can be emailed or posted to the Department of Labour.

The due date for comments is 14 June 2006. Your input will inform advice to Cabinet in late 2006, with a view to introducing a Bill to Parliament in 2007.

Our contact details are:

Website:
www.dol.govt.nz

E-mail address:
actreview@dol.govt.nz

Postal address:
Immigration Act Review
Department of Labour
PO Box 3705
Wellington

1.7 Relevant links

The Immigration Act 1987 and the Immigration Regulations 1999 can be viewed online at www.legislation.govt.nz.

For the Immigration Act, click on Statutes, then click on I under A-Z Contents. For the regulations, click on Statutory Regulations, then click on I under A-Z Contents.