Section 11 - The Use of Biometrics |
This section considers whether legislation should enable immigration officers and refugee/protection status officers 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.
Biometric information is one tool that can assist decision-makers to verify identity and, in some cases, family relationships. Using biometric information on a routine basis could help create a more facilitative immigration system, by allowing more efficient and effective decision-making for the majority of applicants. It would also create a more robust system for preventing identity fraud and detecting persons on international watch lists.
This section discusses the use of biometric information in regard to people requiring permission to enter or remain in New Zealand only. Other government agencies and inter-governmental forums are exploring the collection and use of biometric data in other areas, such as in the context of border management and travel. The Department of Labour is participating in these discussions to ensure that any opportunities for synergies are assessed and that the best outcomes are delivered. The options in this section are consistent with other government work around biometrics
Biometric information is information about distinguishing biological or behavioural features of an individual. Facial recognition is currently the most widely used form of biometric information. It simply requires a person's photograph. Fingerprinting and iris scanning are the other internationally acceptable forms of biometric information currently in use.
'Using biometric information' usually refers to identifying or verifying the identity of an individual by comparing a biometric sample (such as a photograph or fingerprint) against a biometric template, or 'reference template' (such as stored photographs and fingerprints).
DNA can also be used as a biometric identifier. This section discusses using DNA and age verification tests in a very limited range of situations where they are provided voluntarily by a person. (Dental tests are the most commonly used tests to verify the age of a person).
When applying for a visa or permit, an applicant needs to provide sufficient information to allow the immigration officer to determine their identity as well as other factors affecting the issue of the visa or permit. All applicants supply photographs and signatures when making an application.
The Immigration Act allows immigration officers to require evidence of identity where an offence is suspected and where a person is suspected of being in New Zealand unlawfully. Immigration officers may also demand an arriving person's passport or certificate of identity.
Refugee status officers may require a refugee status claimant to provide or allow the taking of fingerprints or photographs, to ascertain or confirm the claimant's identity or nationality.
There is no immigration legislation on the use of DNA. Operational policy sets out guidelines for immigration officers (but not refugee status officers) to request DNA as a verification tool. This policy allows applicants to help verify their case by supplying DNA. No negative inference is allowed to be taken from not supplying DNA when requested, but, without it, sometimes facts are not provable and the application would have to be declined. For example, a DNA test may prove that individuals are related members of a family where there is no other proof of this.
While there is nothing inhibiting refugee status officers or members of the Refugee Status Appeals Authority from requesting DNA or age verification tests, there are no policy or legislative guidelines on this. Refugee status officers may determine a claim on the basis of the information, evidence and submissions provided by the claimant. The onus is clearly on the claimant to present their case (as case law on this matter has reiterated).
Identifying people is a crucial element in facilitating the entry of migrants and visitors that New Zealand wants and needs and managing the potential risk presented by some individuals seeking to enter New Zealand. Immigration control has long relied on biometric information in passports, such as the photograph, which allows a 'face-to-passport' check of arriving passengers. Profiling higher-risk applicants, and examining passports and other identity documentation, allows some false or fraudulent documentation to be detected.
Requiring the onus of proof to rest on immigration applicants and refugee status claimants assists in creating robust, defendable decision-making processes. In some cases, refugee claimants have voluntarily provided age verification tests to assist with their claim. Claimants also provide fingerprints on request, which can be a useful mechanism for testing identity and credibility.
This review presents an opportunity to use technological developments to make border checks and immigration applications more quickly and effectively. At the same time, it would provide greater assurance that identity fraud and persons posing risks to New Zealand will be detected. Increasingly, travel documents are becoming electronic and more sophisticated. The immigration system does not currently have the ability to scan, store and use biometric information contained in such travel documents for future checks.
This means that the Department of Labour cannot currently ensure that a person entering New Zealand on a visa is the same person that applied for that visa. The Department cannot ensure that a person previously removed or deported from New Zealand or who appears on alert lists, and who enters under a new fraudulent identity, is detected. Investigations can eventually reveal some cases of identity fraud, but these investigations are time- and resource-intensive. They are only undertaken where there is suspicion around an application or an individual.
Improvements in document forgery and increasing identity theft has led to more opportunities for individuals or organised groups to circumvent New Zealand's border controls. The Department of Labour has identified many cases of individuals lodging multiple refugee claims under different identities and people who had been removed from New Zealand returning under new false identities.
Traditional reliance on paper-based identity documents appears to be increasingly inadequate to manage identity fraud risks to New Zealand. This is particularly true for the very high-risk individuals who are on terrorist, Interpol and other criminal watch lists. Such individuals seldom travel using their own, genuine travel documents.
New Zealand is entering into an increasing number of arrangements to identify and prevent the fraudulent use of New Zealand passports internationally. These arrangements involve the provision or matching of passport information to prevent fraud. Such arrangements include the Interpol lost and stolen passport system, the Asia Pacific Economic Council's Regional Movement Alert List (RMAL) system and trans-Tasman agreements associated with the Advanced Passenger Processing (APP) system.
The APP and RMAL systems use the Department of Labour's immigration systems to connect with, verify or store New Zealand passport information to prevent the fraudulent use of New Zealand passports internationally. Plans to enhance these arrangements include biometric authentication. Legislation to enable the collection, use and storage of certain biometric information would support New Zealand's contribution to these counter terrorism and anti people smuggling/trafficking endeavours.
Establishing a person's identity is crucial to maintaining an immigration system with integrity, but is often problematic. Many refugees or persons fleeing torture do not have identity documents and, in such cases, home country verification is generally not possible. On the other hand, many claimants attempt to obtain refugee status through some kind of misrepresentation. Decision-makers therefore require robust mechanisms for establishing identity and credibility.
While the Immigration Act does not prevent immigration and refugee status officers from requesting DNA, there is an opportunity for the legislation to be more robust. There is also an opportunity to clarify the ability to use and store photograph and fingerprint information.
Mr B entered New Zealand three times between 1997 and 2002, on three different passports bearing different identities. On the first visit, he overstayed and was removed. He obtained a second visa under a false identity, entered New Zealand, overstayed and was again removed when detected.
Mr B obtained a third visa under a new false identity, entered New Zealand, was located and prosecuted by the Department of Labour on a number of immigration-related identity fraud offences and was sentenced to 15 months in prison.
Typically, a biometric system begins with an enrolment process. This takes place when a traveller applies for a visa or permit, crosses the border, or makes a refugee claim. Each person has a biometric sample captured. Biometric samples are captured by scanning fingerprints, a photograph or an iris, or taking a photograph with a live-capture digital image camera.
The image is then converted by an algorithm into a reference template. The reference template consists of a string of numbers that is unique to the biometric sample. The reference template may be stored in a database, or in a document that the user controls. For example, biometric passports contain the facial data of the passport holder within a small chip embedded in the information page.
There are two typical uses for biometrics during the enrolment process:
If the image presented by the person meets a specified degree of similarity with the reference template, the system considers the two templates to 'match'. For a match to occur, the degree of probability and level of accuracy that the two templates are the same must be very high.
These checks improve the quality of background checking on visa and other travel document application processes and increase the strength of the link between the visa or travel document and the person who holds it.
There are also three typical applications for biometrics at the border:
Because many applicants for refugee status possess no travel or identification documents, one of the first steps in evaluating a claim is to identify the person. The use of biometric information can improve the quality of identity and background checks on an individual. It can help to identify persons who had previously entered the county using a different identity.
DNA testing can also allow for relationships between claimants and family members to be verified where other evidence does not exist or cannot be obtained.
The United States (US) and the United Kingdom (UK) have introduced provisions for the collection, use and storage of biometric identification of all foreigners arriving into those countries. In the US, this includes taking photographs and fingerprints of arriving temporary entrants at the border. The identification information may be used to confirm identity and to identify fraud. The biometric information is based on the United Nations global standards that have been established for the use of new generation e-passports.
Australia has introduced legislative controls for the collection, use and storage of biometric identity information such as those discussed in this paper. This legislation provides a wider legislative basis for collecting personal identifiers such as photographs, signatures and fingerprints, to enhance Australia's ability to establish and authenticate the identity of non-citizens, at various stages of immigration processing and on entry to and departure from Australia. Facial recognition software is being developed to help identify immigration detainees, and biometric trials are underway. Facial recognition software will be able to compare photographs of detainees with those from external agencies and people, to help quickly identify people.
Canadian legislation provides an officer with authority to fingerprint any permanent resident or foreign national who is arrested, detained or is under a removal order. Canada has a system that digitally captures and transmits encrypted information. This system captures palm prints, slap impressions and rolled fingerprint images, as well as providing a means of inputting biodata information. It also captures photo images via an integrated digital camera.
Canada and the UK do not have explicit legislative provisions regarding the use of DNA in decision-making.
ICAO is the specialised agency of the United Nations whose mandate is to ensure the safe, efficient and orderly evolution of international civil aviation. ICAO is responsible for creating and modernising universally-accepted standards and recommended practices.
In 2003, ICAO adopted a global blueprint for the integration of biometric identification information into passports and other machine-readable travel documents. The increased use of biometric-enhanced travel documents will lead to the speedier passage of travellers through airport controls, heightened aviation security and added protection against identity theft.
Facial recognition was selected as the global biometric standard for travel documents to allow machine-assisted identity confirmation. In a comprehensive analysis of various available biometrics, the face rated highest in terms of compatibility with key operational considerations, followed by fingers and eyes. The face has long been used by border control authorities and airline staff at airports to confirm identity with a photo ID. Facial recognition technology automates this process, using a camera to capture the image of the face, while a computer validates facial characteristics.
ICAO recognises the following benefits in using facial recognition:
In the passport context, the new e-passport will enable facial recognition technology to be used at international borders. The e-passport (issued by the Passports Office from 4 November 2005) contains an electronic chip incorporating information about the passport holder, including an encoded image of the holder's photograph, which can be read and compared with a digital photograph that is taken when the person arrives at an international border checkpoint that has compatible technology.
The New Zealand Police have, for many years, used fingerprint analysis, which is another use of biometrics.
Two options are presented here. Option A would maintain the status quo. Option B would meet the objectives of the review and is preferred. Option B would create a two-tier power in legislation that enables immigration officers to:
The Department of Labour would continue to rely on paper documentary evidence of a person's identity, such as a passport. Where this is unavailable or there are doubts about a person's identity, the person could be fingerprinted. An applicant could also voluntarily supply DNA to support a relationship claim.
As noted above, travel documents and border systems are becoming increasingly sophisticated, and the status quo would not allow for parallel developments. Identity fraud has become increasingly difficult to detect and the current system is regularly compromised. The inability to use additional methods to ensure the integrity of the immigration system reduces the ability of the Department of Labour to regulate entry and stay in New Zealand's interests and to contribute to the safety and security of New Zealand. It also contributes to a system that is less effective and efficient for the majority of migrants and visitors who New Zealand needs.
Some elements of current processing, particularly around the use of DNA by refugee claimants sponsoring family members, would remain without clear legislative backing and controls.
Legislation would enable immigration officers to:
Internationally, photographs, fingerprints and iris scanning are considered to be the most robust biometric identifiers and are endorsed by ICAO. It is proposed that the legislation would require the use of biometric information in the immigration context to be consistent with United Nations ICAO standards. At this stage, therefore, it is proposed that the legislation allow for only photographs, fingerprints and iris scanning to be required as biometric identifiers.
The legislation would specify that DNA and age verification tests may not be required, but may be requested to assist a case. Voluntary provision of DNA would be useful where the case for approval is tenuous and, in particular, where it would otherwise be declined.
This option would give delegated immigration officers the power to require, use and store specified biometric information to confirm a person's eligibility to enter or remain in New Zealand. This would include visa and permit applicants and refugee claimants. Using biometric comparisons would be only one aspect of establishing the identity of an individual who requires permission to enter New Zealand. Current methods for establishing identity would continue.
Immigration officers could make use of the biometric information that may be required in the following ways:
The collection of this information would need to be rapid, to reduce the impact on applicants and arriving passengers. This would be achievable, for example, where relevant biometric identification information is contained within improved passports or through the use of quick biometric capture technology.
Should the system indicate a match, then an officer would be assigned to investigate. The purpose of an investigation would be to establish whether the match was a result of data error or whether fraud or misrepresentation had been detected. The Department of Labour already has processes for applicants to review their personal information, correct inaccuracies and challenge decisions made on the basis of false information. Biometrics present unique issues, however, that would require a purpose built solution to be developed to questions around access, correction and appeal.
Detailed guidelines and safeguards would need to be established around both requiring and requesting the voluntary provision of biometric information. Some safeguards may need to be set out in the legislation, and others may be established in regulations or policy. The guidelines would need to include:
In low-risk cases, such as visa-free travellers, Option B would involve scanning the passport photograph at the border. In the case of low-risk visa applicants offshore, this would involve scanning the photograph that the applicant already provides with their application. In high-risk situations, there could be the opportunity to require more than one biometric identifier with a visa application, such as a photograph and fingerprints or an iris image.
There would be no change for New Zealand citizens travelling on a New Zealand passport.
This option would help improve the facilitation of genuine migrants and visitors. The ability to quickly and easily authenticate low-risk travellers would enable immigration decision-making that was more effective and efficient. It would complement other initiatives for improved facilitation of entry to New Zealand such as the use of e-passports and e-visas.
This option would also enhance New Zealand's counter-terrorism and national security capability by allowing the Department of Labour to identify, through biometric-based alerts lists, high-risk individuals who commonly use false identities and travel documents. This ability to check against biometric-based alert lists would offer a new and more effective capability to identify and prevent entry of extremely high-risk or prohibited individuals.
Persons on alert lists (for example, for war crimes, crimes against humanity and terrorism) rarely attempt to enter New Zealand under their known identities contained in current alert lists. Moving from managing alerts using names and dates of birth to matching using facial biometrics would enable the Department of Labour to far more effectively manage national security, criminal and reputation risks posed by high-risk individuals prohibited from entering New Zealand.
Powers to require, use and store biometric information would:
This option would increase the ability of the Department of Labour to maintain the integrity of the immigration system. It would ensure that the regulation of entry is undertaken in New Zealand's interests and contributes to the safety and security of New Zealand. The ability to run identity checks prior to the arrival of a person in New Zealand would also increase the ability of the Department of Labour to prevent people identified as a risk from entering New Zealand. Successfully preventing the entry of a person under a false identity would result in a reduction in subsequent costs from efforts to locate and remove them.
This process could ensure that authentication of the identity of a foreign-born individual is of the same standard of authentication as that required of New Zealanders (particularly when seeking a New Zealand passport). This would link well with the New Zealand Evidence of Identity Strategy. An objective of business processes around authenticating foreign-born individuals' identity would be to comply with the New Zealand evidence of identity standard. This would allow the Department of Labour to allocate a level of confidence in a person's identity within the immigration system.
A clear cost of this option would be the equipment and the administration of a system to collect, analyse and use biometric information. The technology is developing quickly, however, and costs may reduce as the technology becomes more widely available.
The collection and storage of biometric information has privacy implications. Legislation would need to incorporate appropriate privacy protections.
In the refugee/protection context, Option B would help claimants establish their cases where:
In the broader immigration context, this option would provide clear legislative backing for the current practice of requesting DNA in difficult immigration cases. It would clearly establish that it was lawful to request such information. It would allow more comprehensive guidelines and safeguards to be developed.
Finally, as noted above, this proposal would be developed with other government agencies working on biometrics issues to ensure alignment with cross-government work and developments in this area.
11.1 Key question
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