Section 12 - Detention |
In order to maintain the integrity of the immigration system, the government should be able to enforce immigration rules. This may require detention of immigration 'offenders' in a limited range of circumstances. New Zealand has a fair immigration detention system that is well-regarded internationally.
Detention for immigration purposes may be used when a person:
There are a range of options available for immigration 'detention'. These include:
The current detention system is fundamentally considered to be fair and effective, and there are no proposals to make changes to the reasons for detaining people, or how frequently detention is used. In particular, there are no proposals to change release on reporting conditions and open detention.
This section therefore focuses on what the appropriate limitations should be on detention to ensure the integrity, efficiency and effectiveness of the immigration system. It also seeks to ensure the detention system aligns with the proposed new expulsion system discussed in Section 6: Exclusion and expulsion.
Finally, it is important that detention provisions align with the New Zealand Bill of Rights Act 1990, in particular the right to be free from arbitrary detention. The detailed development of the proposals in this section will need to closely consider New Zealand Bill of Rights Act requirements.
This subsection considers the maximum period that a person can be detained without a warrant of commitment, pending expulsion from New Zealand
A warrant of commitment is an order from the District Court confirming that it is appropriate to keep a person in custody for a specified period.
In order for the Department of Labour to arrange a person's departure from New Zealand, a person may be detained without a warrant of commitment for up to 48 hours (in the case of deportation) or 72 hours (in the case of removal). If a person cannot be placed on a flight within this limited period of time, an immigration officer must apply to the court for a warrant of commitment. A warrant of commitment can authorise continued detention to allow the person to be removed or deported.
Where a person has arrived at the border and is denied entry into New Zealand, they can be detained for up to 48-hours initially without a warrant of commitment. There are no proposals to change this time period, as it is working effectively.
The limits to the period a person can be detained without a warrant of commitment protects the fundamental rights of that person. The limits ensure that the person has their detention reviewed by the courts within a reasonable time.
The initial period of detention without a warrant of commitment (48 or 72 hours) is now too short to arrange departure in many circumstances. It often takes up to 96 hours (four days) to arrange a departure from New Zealand.
In certain circumstances where a removal or deportation order has been served, the Department of Labour struggles to remove a person within the specified timeframe of up to 48 or 72 hours. The department is then required to seek court approval for a warrant of commitment. Often the warrant of commitment is required to keep people for a very short extra period of time. It may only extend the maximum period of detention to a total of 96 hours (four days). The increasing need to obtain a warrant for this short period has led to an increase in costs for the Department of Labour and places undue burden on the courts.
Factors which influence the time taken to effect removal include:
Airline clearances/approvals - Since the events of 11 September 2001, airlines have demanded advance notice of an intention to place a person being removed on a flight. Airlines have also demanded an increased level of identity and risk checks. Approval for an airline to carry a person being removed is now only given at head office in the 'home country' of the airline. For example, China would have to give consent for Air China. The different time zones involved slow down the approval process. Airline approval is now very difficult to obtain within 72 hours.
Police clearances - Airlines and transit countries now require a New Zealand Police security check on a person being removed. This check takes time and it is difficult to obtain the check within 72 hours if the person has a criminal history.
Police escorts - If a Police escort is required to escort a person being removed, it takes time to make the arrangements. An appropriate escort must be selected and any travel arrangements made. This includes ensuring the escort has the required visas to travel.
Flight availability - Often people who are being removed come from remote countries. Arranging flights can be complicated when direct flights do not occur on a daily basis. Seats are often not available on busy routes during peak periods.
Difficulty obtaining travel documents - The increased identity and security checks undertaken by all countries can make travel documents hard to obtain in a short timeframe. This difficulty is exacerbated because of the increasing number of people coming from countries with no diplomatic/consular representation in New Zealand, such as Nigeria.
Administrative difficulties - The removal process can often not begin for a person who is located on a Friday afternoon or over the weekend until the following Monday. The key agencies or individuals required to process a departure may not be available until the next full working day. It is often also difficult to find a District Court Judge to obtain a warrant of commitment on a public holiday.
Immigration officers and others can spend significant amounts of the available 72 hours obtaining the warrant which detracts from the time available for arranging the removal. The immigration officer must spend about an hour the day before court preparing the papers. The actual court process to obtain the warrant can take two hours or more. In addition, Police or Corrections officers' time is required in transporting the person to and from court, and supervising the person while the court process is taking place.
There is also the opportunity to ensure that provisions on this issue are consistent with the proposals in Section 6: Exclusion and expulsion.
Australia currently requires the mandatory detention of people present in the country unlawfully. A warrant of commitment is not required and there is no systematic review of detention by the courts.
Canada requires a review by the Immigration and Refugee Board, an independent immigration appeal authority, after 48 hours of detention. There is, however, a presumption that detention will continue. After 48 hours, the decision to release the person rests with the Immigration and Refugee Board.
Two options are presented here. Option A would retain the status quo. Option B would extend the maximum period of detention without a warrant of commitment to a person served with an expulsion order (as proposed in Section 6: Exclusion and expulsion) to 96 hours (four days). It would ensure that the detention system is more efficient and effective and that it is consistent with the new proposals discussed in Section 6. Early authorisation for detention by a judicial authority is an important safeguard against arbitrary detention, however, and for this reason there is no clear preference at this stage between Option A and Option B.
In order for the Department of Labour to arrange a person's departure from New Zealand, a person would continue to be able to be detained without a warrant of commitment for up to 48 hours (in the case of deportation) or up to 72 hours (in the case of removal). If a person cannot be placed on a flight within this limited period of time, an immigration officer must apply to the court for a warrant of commitment.
Maintaining the status quo would ensure that the need for continued detention and the rights and interests of detainees are considered promptly. However, the practical difficulties in removing people within 72 hours would remain, and the costs of seeking warrants of commitments at this stage may outweigh the benefits.
The maximum period of initial detention without a warrant of commitment for people issued an expulsion order would be extended from 48 hours (two days), in the case of current deportation orders, and 72 hours (three days), in the case of current removal orders, to 96 hours (four days). As with current practice, the power would only be used where immigration officers consider that the person would not otherwise leave voluntarily.
This change would reduce the cost of arranging a person's departure, particularly where the warrant of commitment being sought was for a minimal extra period of time. It would contribute to an efficient and effective immigration system, by allowing immigration officers to focus on securing all the necessary approvals, identity and risk checks and travel documents for a person, instead of spending time in the courts seeking a warrant of commitment.
Extending the period of initial detention to up to 96 hours (four days) would reduce the protection offered to people who are being detained. Detention impinges on a person's freedom of movement and should always be for the minimum justifiable period. The government recognises this and does not propose to make changes to the reasons for detaining people, or how frequently detention is used. The focus would still be on getting the person on the first available aircraft. There would be no change to the processes that ensure people are detained only after comprehensive investigation into their status in New Zealand.
Detention without a warrant for up to 96 hours (four days) would not preclude a Habeas Corpus writ. This enables the person to challenge the lawfulness of their detention. The protection of their rights would remain as it does under the current system.
Increasing the possible period of detention without a warrant of commitment may not change the overall period that the person is held in detention. It may help to decrease the total length of time a person is in detention by allowing immigration officers to focus on the departure requirements, rather than going to court to seek a warrant. It would also reduce the burden on the court system by freeing court resources for other matters.
Alternative options considered included extending the maximum period of initial detention without a warrant to seven days. An extension to seven days would clearly address the problems identified above. However, an extension beyond four days was considered to unnecessarily impose on a person's individual rights and to be unjustifiable.
12.1 Key question
|
|---|
This subsection considers how often the courts should review the detention of people for immigration purposes.
As discussed above, the Immigration Act allows a person to be detained in limited circumstances. A person may be initially detained without a warrant of commitment for a limited period. After this, the courts are required to review the need for detention and to authorise any continued detention of the person by issuing a warrant of commitment. The warrant sets out an initial period of continued detention (a maximum of seven days in removal cases and a maximum of 28 days in deportation cases, or where a person has been denied entry). Following this initial period of detention, the warrant of commitment must be reviewed and renewed every seven days.
The right of a person to have the lawfulness of their detention reviewed by the courts within a reasonable time is fundamental. The current warrant of commitment system ensures a regular and independent assessment of whether detention is justified.
The current requirement is to review and renew a warrant of commitment every seven days, after the initial period of detention. In many cases, the initial period of detention is sufficient to resolve cases where detention is required for short durations.
In some cases it will be obvious from the situation that the continued detention of a person is warranted for a longer period. The inability of judges to issue a warrant of commitment to continue detention for longer than seven days is an unnecessary constraint on the court. This is particularly problematic where a judge is fully aware the decision-making process will necessarily take several months, as in the case of refugee determination.
A range of participants in the warrant renewing process have suggested that it would be helpful and appropriate to extend the required review period. This would allow judges to use their discretion to make a decision appropriate to an individual case.
The frequency of the review and renewal required under the current Immigration Act imposes significant costs on the Department of Labour and the courts. The need for the courts to review continued detention every seven days creates high administrative costs for the government, including organisation, transport and staff from multiple agencies. It also imposes costs on the courts.
Australian authorities are not required to obtain court approval for detention of unlawful non-citizens, as detention is mandatory. Review of detention is not required for extended periods.
Canada requires a review by the Immigration and Refugee Board, an independent immigration appeal authority, after 48 hours of detention, then within the next seven days and every 30 days thereafter. After 48 hours, the decision to release a person rests with the Immigration and Refugee Board.
Two options are presented here. Option A would maintain the status quo. Option B would give the judge discretion to authorise detention without review, for a period of no more than 28 days at a time, and is preferred.
The review and renewal of a warrant of commitment after the initial period of detention would still be required every seven days.
Maintaining the status quo would ensure that the need for continued detention and the rights and interests of detainees are considered regularly. However, as noted above, such frequent reviews may not be required in all cases. The current situation does not allow the courts to make decisions appropriate to the individual facts of each case. It imposes significant costs for the Department of Labour and the courts.
Option B would give judges discretion to authorise, after the initial detention period, detention without review for a period of no more than 28 days at a time. The judge authorising continued detention could set the review to be earlier than the 28 days if they felt that was appropriate in the individual circumstances.
Allowing judges this discretion would allow them to consider the facts of an individual case. A decision appropriate to the individual case could then be made in each circumstance.
More frequent administrative reviews of detention by a person senior to the original decision-maker would be established. This would ensure that any changes in circumstances were taken into account as they arose. No person would be detained unnecessarily or for any period of time longer than needed to arrange for their removal from New Zealand.
Extending the period of detention without judicial oversight may not change the overall period that the person is held in detention or the process that ensures people are only detained after comprehensive investigations into their status in New Zealand. The stringent checks and balances currently in place would remain.
A person arrives in New Zealand and claims refugee status. They have destroyed their travel documentation en route and refuse to give any information regarding their identity. The person is detained to allow refugee status to be assessed. At the time the person is detained, refugee status determinations for persons in detention are taking, on average, three months. On the first review of detention, the judge authorises continued detention and deems it appropriate for the next review to take place in 28 days.
The person is approved refugee status after being in detention for 10 weeks. Under Option B, this requires three reviews by the court, rather than eight under the status quo.
Adopting longer periods between judicial reviews (supported by more frequent internal administrative reviews) is likely to improve efficiencies within the detention system whilst still ensuring sufficient judicial oversight of ongoing detention. It will allow judges to exercise their discretion in individual cases. This would contribute to the principle of establishing efficient processes and maintaining a fair process.
The reduced frequency of independent judicial oversight of detention could be seen to be offering less protection. However, in any review and renewal of detention, the judge is able to set a reduced period of review less than the maximum 28 days allowed. Additional internal review of the need for ongoing detention would also be a requirement of increasing the period between independent reviews. The cost of establishing an internal review process is unlikely to be as high as the current costs involved in weekly judicial review.
12.2 Key question
|
|---|
This subsection considers whether it is ever necessary to detain a person for longer than three months while arranging their expulsion from New Zealand.
As discussed earlier, secure detention is always a measure of last resort. Reporting conditions or open detention for immigration detainees are preferred to detention. The need for detention is also reduced by encouraging the voluntary departure of people unlawfully in New Zealand who have been located. Just over 1,200 such voluntary departures occurred in 2004/05.
In New Zealand, no person can be detained for a total of more than three months once they have been served with a removal order. Exceptions to the three month timeframe are allowed if the person:
Under these exceptions, the judge may not order the release of the person unless there are exceptional circumstances. Their warrant of commitment can be extended for no more than 30 days at a time. This allows for the continued judicial review of the person's detention based on the individual case.
A person entered New Zealand and made a refugee status claim that was based on false information. After their final appeal confirmed that they had no claim to refugee status, their permit expired. They broke contact with the Department of Labour, failed to leave New Zealand voluntarily and continued to work here unlawfully.
Once located, the person was served with a removal order and detained as a probable flight risk. While in detention, the person refused to sign the application for a passport from their home country. Their actions meant that the Department of Labour was not able to complete their removal.
The court ordered continued detention for 30 days at a time, until the person cooperated in obtaining travel documents and the removal went ahead.
The majority of removals are undertaken without the need for detention. Detention prior to removal is only used in cases where there is concern regarding the identity of a person or they are considered to be a flight risk. Detention is a useful tool for ensuring that the Department of Labour can effectively manage the removal of these people.
People are usually removed well within the three-month maximum period of detention. The Department of Labour works to ensure that the majority of removals happen within a minimum timeframe of 96 hours (four days) of detention.
The current exceptions, allowing for extended detention by the courts, are a useful counter to delaying tactics by a person who seeks to disrupt the removal process and challenge the integrity of the immigration system.
The Department of Labour needs to satisfy a number of administrative requirements in order to successfully remove a person from New Zealand (discussed in Subsection 12.1 above). One requirement is to obtain the appropriate travel documents. There are occasions when foreign governments can take some time to confirm the identity of a person and issue travel documents. Often this is due to the administrative processes in the person's home country.
If the process of obtaining travel documents takes longer than three months, the person must be released from detention. Once the travel documents are available, the person must be located again. If the person is not located in time, the travel documents may expire. The travel documents themselves are often issued for a limited time and specific purpose. If they expire, the process of obtaining them must begin again. This happens in a small number of cases (around 50) each year.
The requirement to release a person who is considered a flight risk while making arrangements for their removal undermines the effectiveness of the detention system and the efficiency of the removal process. It reduces the ability of the government to control who may remain in New Zealand.
The United Kingdom (UK) has established agreements with a number of countries allowing for the return of illegal migrants without documentation, or agreeing to minimum timeframes for the issuing of travel documents.
Australia has similar agreements to the UK. It has sometimes responded to slow issuing of travel documents by slowing (or halting) the processing of travel documents for nationals of that country seeking to travel to Australia.
Neither of these options is seen as feasible for New Zealand, as New Zealand does not necessarily have the leverage to obtain return agreements similar to the UK, nor the desire to put other national objectives at risk through obstructing travel for the law-abiding majority.
Canada does not have a statutory limit on the time a person may be detained for immigration purposes. Although some individuals may be detained on a long-term basis, Canada's policies and practices promote short-term detention.
Two options are presented here. Option A would maintain the status quo. Option B would create an additional exception which would allow a judge to order detention beyond three months, with review at least every 28 days where administrative requirements necessitate it. Such an exception could authorise a maximum of six months detention only. Option B is preferred.
There would continue to be a three-month limit on detention for the majority of cases, and the two current exceptions for longer detention would be retained.
The three-month limit on detention acts as an incentive to conclude removal processes quickly and ensures that people are not unnecessarily detained for extended periods of time. Retaining a maximum period of detention would maintain the existing level of certainty, for courts and detainees, that the detention has a limited timeframe. This may assist the courts in considering the matter of ongoing detention by providing a frame of reference for how long detention is considered likely to be necessary.
There would continue to be a small number of cases each year that are unable to be concluded within this timeframe, due to delays in obtaining the appropriate travel documentation. People considered to be a flight risk would still be released into the community.
A third exception to the three-month maximum period of detention would be added to the Immigration Act. This exception would allow judges to detain a person for longer than three months, but for a maximum of six months. Such an exception could only be made where the judge was satisfied that administrative requirements for the expulsion were unable to be finalised within the three-month period, through no fault of the Department of Labour. This would clearly put the onus on the Department of Labour to do everything possible to arrange the removal within three months.
The detention would require judicial review every 28 days at least, as discussed in Subsection 12.2 above. This would ensure that the courts regularly considered the need for ongoing detention. The rights of the individual would be considered independently, and this would also provide an appropriate incentive for the Department of Labour to expedite the person's removal.
Including a third exception in the legislation would not change the reasons that a person may be detained. The Department of Labour would continue to use detention as a measure of last resort. This option would continue to allow persons to be accommodated in an open detention centre, or released on conditions where appropriate.
A person enters New Zealand as a visitor, stays unlawfully after their permit expires and works illegally. They are located by the Department of Labour, which agrees to allow a voluntarily monitored departure a week later. However, the person fails to depart voluntarily. Despite ongoing investigations, the person evades the department for six months, but is eventually located, issued with a removal order and detained pending removal. The person will not, however, produce their passport.
When the person is first detained, an application for a new travel document from the person's home country is made. This travel document is not a full passport, is valid only for one month and usually takes two months to be issued. After nearly three months, that country's consular officials advise that there will be a further one-month delay in providing the travel document. While the delay is not fault of the person, previous behaviour indicates that the person would, if released, not voluntarily come forward to be removed. On this basis, the department seeks a judge's agreement that the person should be detained beyond the three-month limit, for another 28 days.
Currently, the judge could not detain the person beyond the three-month limit. The person would be at large when the travel document arrived, giving the department only one month to locate the person again before the travel document expired. Under Option B, the judge could order a further 28 days of detention if satisfied that the Department had not caused the delay, and the person would be removed when the travel document arrived.
The principal benefit of Option B is that it would allow the judiciary to consider a third exception to the three-month limit to detention, where a person's removal from New Zealand was being arranged. The review period of no more than 28 days would allow a judge the discretion to consider the individual facts of each individual case and make an appropriate decision on the ongoing detention (up to a maximum of six months). It ensures that the rights of the individual are considered regularly and that no person will be detained unnecessarily.
This option would uphold New Zealand's interests in choosing who travels to New Zealand and remains here. It would ensure that the removal process was efficient and that the detention system was an effective tool for maintaining the integrity of the Immigration Act. Six months is likely to be sufficient to obtain the necessary documents in the vast majority of cases.
Option B provides an assurance that a three-month limit to detention remains the rule. An extended period of detention longer than three months (but a maximum of six months) would be an exception to that rule. It would require an exception to be made by the courts, while the review period would require the need for the exception to be considered frequently. Also, the Department would have to show that any delay was not of its making. Option B would ensure that strong safeguards to protect individuals in the detention system would remain.
While the numbers of people detained for longer than three months are likely to be small, there would be costs for the Department of Corrections from any additional periods of detention. This risk is mitigated by the availability of alternative responses, such as open detention and release on conditions.
12.3 Key question
|
|---|
This subsection considers the need to renew a warrant of commitment in cases where a person is also detained to serve a prison sentence for a criminal offence.
A warrant of commitment must be obtained in order to detain a person who is 'refused entry', or who is the subject of a refugee claim, and whose identity cannot be established. This warrant allows for an initial period of detention of up to 28 days and, after that, must be renewed every seven days.
Where a person arrives in New Zealand and, in the course of arriving, commits a criminal offence (for instance, bringing drugs into the country), it is possible to obtain a warrant of commitment. This allows for the individual to be detained pending their removal from the country, and they are given 'refusal of entry status'.
There may be cases where the person with refusal of entry status is prosecuted and sentenced to prison. For the duration of their sentence and in order to preserve that refusal of entry status, the Department of Labour must continue to renew their warrant of commitment every seven days while they are in prison.
In general, regular independent assessment of the continued need for detention for immigration purposes supports the detention regime and ensures that unnecessary detention is avoided. Maintaining 'refusal of entry status' for a person in detention helps the Department of Labour to remove them quickly after they have served their sentence.
Where a person has been refused entry and is also sentenced to prison, the Department of Labour must continue to renew the original warrant of commitment every seven days for the entire duration of the sentence. This weekly renewal may sometimes go on for a number of years.
If the original warrant is not renewed, the person cannot be treated as though they were refused entry at the border when they are released from prison. This means that these people will be treated as though they were initially in New Zealand lawfully and they may have appeal rights. They may be released into the community even though they are not a person New Zealand would choose to let enter and remain in the country. Even if their appeal is not upheld and they are subject to removal, it may then be difficult to locate the person once they are in the community.
Many jurisdictions issue such people with a special visa entitling them to enter the country only for the purpose of serving their prison sentence. On the completion of the sentence, the person's permit expires and they must leave immediately or face normal removal action. This usually entitles them access to appeals processes. Although such appeals are seldom successful, they can delay the person's departure from the country.
Two options are presented here. Option A would maintain the status quo. Option B would enable the requirement to renew a warrant of commitment to be waived for a person who is convicted and imprisoned, and who has refusal of entry status. Option B is preferred.
The requirement that a warrant of commitment be renewed every seven days would be retained.
As noted above, people who have been refused entry may be imprisoned for a criminal offence for a number of years. Given that their circumstances are unlikely to change during this period of imprisonment, the administrative costs associated with renewing their warrant of commitment every seven days are not justified.
The legislation would enable the court to waive the requirement to renew a warrant of commitment where a person has been refused entry to New Zealand and is serving a prison sentence for criminal behaviour. The requirement for judicial review of immigration detention could be waived until seven days after the end of their criminal sentence.
This would mean that the person would complete their prison sentence and then could continue to be detained for up to seven days to allow for their removal from New Zealand. If the person has still not been removed, their ongoing detention would be subject to judicial review. A warrant of commitment from a judge would be required to continue their detention while awaiting their removal from New Zealand.
The Department of Labour would work to remove such people as soon as possible after their criminal sentence ends so that they would not be subject to immigration detention for longer than necessary. The department would work together with the Department of Corrections to ensure that they were aware of when a person with refusal of entry status was due to end their criminal sentence and be detained for immigration purposes. This would enable them to ensure that the administrative requirements for that person's removal were arranged prior to the end of the person's sentence. This process would be established as best practice. It would mean that a person would rarely have to be placed in immigration detention at the end of their sentence.
This option would mean that the Department of Labour would no longer be required to renew warrants of commitment every seven days during a period of imprisonment, in all cases. Enabling the detention to continue for up to seven days following the period of imprisonment ensures that they can continue to be detained to enable removal to take place. The person would retain any rights of review and appeal that existed when they were first attempting to enter New Zealand but would not gain any further review rights. This option would contribute to the principle of efficient processes.
12.4 Key question
|
|---|
This subsection considers whether there are gaps in the current system that prevent the Department of Labour from arranging detention of people (including open detention and release on conditions) where this is an appropriate response. This subsection does not question the reasons for detention, which are considered to be robust. Rather it considers whether differences that allow people to be detained at the border, but not onshore, might undermine the integrity of the immigration system.
The current Immigration Act allows a person to be detained in very limited circumstances. These circumstances include when a person is refused entry to New Zealand at the border on arrival, and/or is discovered unlawfully in New Zealand up to 72 hours after arrival.
The power to detain in these circumstances is often used in regard to refugee status claimants who are refused a permit at the border. Despite that refusal, their refugee claims must still be properly processed. Other persons refused a permit at the border are usually quickly sent back to where they came from.
There are other situations where a person may be detained, such as if there is classified information indicating that the person is a security threat. This issue falls within Part 4A of the Immigration Act (which is outside the scope of this review).
There are clear operational guidelines for immigration officers on what is the appropriate response to a refugee status claimant at the border. An immigration officer may grant the person a temporary permit to enter and remain in New Zealand lawfully, or refuse a permit and:
Guidelines for when a refugee status claimant may be granted a temporary permit to enter and remain in New Zealand lawfully include when:
Guidelines for when a refugee status claimant may be detained in secure detention include when:
Further guidelines are set out for when a person may be released on conditions or held in open detention.
As discussed throughout this section, there are clear mechanisms for allowing a person to be detained pending removal from New Zealand, and to be turned around at the border, where the person does not claim refugee status.
New Zealand's refugee determination system is well regarded internationally. A refugee status claimant is never removed from New Zealand before their case is determined and they have exhausted appeal rights. Alternatives to detention are always sought in the first instance. Refugee status claimants are only detained when the alternatives are clearly not viable options.
Where the person is detained, the refugee status determination is always expedited to ensure that they are detained for the minimal period of time possible. The detention system for refugee claimants, including release on conditions and open detention, is seen by the United Nations High Commissioner for Refugees (UNHCR) as a model process. It has been tested in the courts and has been consistently found to be robust.
A refugee status claim requires a detailed and robust assessment which, in most cases, takes a minimum of three to six months. It is only after a claim has been finally declined that removal can be considered and detention on that basis initiated.
When a person claims refugee status within New Zealand (that is, not at the border), but there is no record of this person entering New Zealand under the name they present and they have no travel documentation, there are likely to be significant identity concerns. Under the current legislation, while this person could have been detained at the border, they cannot be detained if the identity concerns arise more than 72 hours after entering New Zealand. Similarly they cannot be accommodated in open detention or released on conditions.
Approximately three-quarters of all refugee status claimants make their claims from within New Zealand. A significant number of these people have no identity documentation. In such cases, they are most likely to have entered New Zealand on fraudulent documentation. There can be no certainty around their actual identity, and it is difficult to assess the level of risk they present.
The difference in treatment between those people who claim refugee status on arrival and those who claim from within New Zealand provides an incentive for people to enter illegally. This incentive is apparent in the greater number of people who claim from within New Zealand.
Australia detains all people who are considered to be 'unlawful non-citizens' and whose identity is unknown. This includes all people who have arrived in Australia on fraudulent documents and those who subsequently make a refugee status claim. Asylum seekers who arrive using their own documentation are not detained while their status is determined unless they are a health or character concern.
Canadian legislation authorises detention of a person considered a danger to the public or a flight risk. The power of detention can be used at any time in these circumstances. People can also be detained at the border when their identity is in question and security concerns exist.
Officials are not aware of any country that makes a distinction regarding detention based on whether a person claims refugee status at the border or within the country. Rather, distinctions are generally made on the level of risk presented by the person.
Two options are presented here. Option A would maintain the status quo. Option B would enable any person who claims refugee status to be detained (or accommodated in open detention or released on conditions) regardless of when they make the claim, provided they meet the same strict criteria for detention. Option B is preferred.
Under the status quo, a person who makes a refugee status claim after 72 hours in New Zealand cannot be detained, even where there are serious identity and character concerns.
The management of those who claim refugee status at the border would continue to work well. As noted, the current use of detention is regarded by the UNHCR as a model process.
The gap in the current legislation means that some people who present significant identity and character risks are allowed to remain in the community until their refugee status claim is determined. This makes it much more difficult to locate and remove the person if refugee status is declined.
Under Option B, both those who claim refugee status at the border and those who claim from within New Zealand could be detained while their claim was being determined, provided they meet the same strict criteria for detention:
In all cases of detention, refugee status determination would be expedited to ensure that the person was detained for the minimal period of time possible. Their detention would be subject to judicial review by the courts, as discussed earlier in this section.
This process would be consistent with the proposals for regular judicial review discussed earlier in this section. It would ensure that no person was detained unnecessarily, or for longer than necessary to establish their identity and consider the risk they pose to New Zealand. Safeguards, including the judicial review of detention, would ensure that individual rights were upheld.
A person comes to New Zealand on a false passport and is granted a temporary permit at the border under the name of Josephine Bloggs. A month later, she claims refugee status under the name of Jane Doe.
In this case, the real identity of Jane Doe is unclear. Had she claimed refugee status at the border, she may have been detained. Under the current legislation, there is no power to assess the most appropriate option for this person while refugee status is being determined. She must remain in the community.
Under Option B, Jane Doe may be detained in secure detention where there are high risks such as possible criminal offending (as outlined in paragraph 896), and the risk cannot be managed through open detention, release on conditions, or granting a new permit.
This option would close a current gap in the Immigration Act. It could reduce some current incentives for people to enter New Zealand unlawfully to claim refugee status. It would create a real incentive for refugee claimants who have entered fraudulently to inform the Department of Labour of their real identity to avoid detention.
Option B would enable the Department of Labour to maintain the integrity of the immigration system and manage the risk that unknown people may pose to New Zealand. It would ensure the right of New Zealand to choose who entered and remained in the country.
The safeguards around the judicial review of detention would ensure that processes were fair and consistent with the current detention system. They would allow each case to be considered individually and would ensure that an individual's rights were maintained.
This option may have cost and resource implications for the Department of Corrections. If the number of refugee status claimants to be held in secure detention increases, the Department of Corrections would have to manage this increase and the associated costs. This risk is mitigated by the alternative detention options available to the Department of Labour, including open detention at Mangere Accommodation Centre and release on conditions. These alternatives are currently used frequently for refugee status claimants detained at the border.
12.5 Key question
|
|---|
This subsection considers whether the new Immigration Act should give practical support to the Chief Executive of the Department of Labour's current power to designate a place of immigration detention. It considers whether the Act should establish clear powers and procedures for immigration officers to undertake the secure detention of people in such places.
The Chief Executive of the Department of Labour can designate a place for immigration detention under the current Immigration Act. However, immigration officers have no power to hold a person in that place. The Act does not give them the power to detain people in any circumstances. This means that the Chief Executive's power is ineffective.
If a person being detained requires secure detention (rather than reporting conditions or open detention in the Mangere Accommodation Centre), they will be held in either New Zealand Police facilities (for short durations) or Department of Corrections facilities (for periods longer than 48 hours).
The number of immigration detainees in New Zealand Police and Department of Corrections facilities is relatively small. The bulk of immigration detainees are held in Police facilities for relatively short durations while the Department of Labour makes arrangements for them to leave.
The Corrections Act 2004 contains the ability to make provision for immigration detainees held in Corrections facilities to be accommodated under a separate regime from other prisoners. This means that, while detained in Corrections facilities, immigration detainees could be treated differently. In practice, the Department of Corrections generally apply the same regime to immigration detainees as for unconvicted remand prisoners. This acknowledges that neither immigration detainees nor remand prisoners have been found guilty of a criminal offence by the courts.
New Zealand's immigration detention system has an excellent reputation with international agencies. The system uses reporting requirements and an open detention facility (the Mangere Accommodation Centre) when immigration detainees are not considered a flight risk.
The practice of secure detention is undertaken by agencies with the greatest experience, training and technical knowledge of detention (Department of Corrections and the New Zealand Police). This enables detention to be undertaken in an efficient way, and ensures consistent treatment and protection of staff and those who are being detained.
There are low numbers of immigration detainees in Corrections facilities and there is no need or justification for building a separate immigration detention facility.
New Zealand's practice of secure detention in Police or Corrections facilities has been criticised by practitioners, commentators, foreign governments whose nationals have been held in Police cells, UNHCR and non-government organisations with an interest in detention practices. The principal issue for those who criticise New Zealand's secure detention system is that New Zealand does not have secure detention facilities separate from Police or Corrections facilities.
Because of the lack of any criminality in the majority of immigration detention cases, it is often inappropriate and undesirable to hold immigration detainees alongside remand prisoners or convicted criminals. The practice could give rise to assumptions about criminality of immigration detainees by the wider public or, for example, future prospective employers.
Existing legislation provides for immigration detainees to be treated differently to other detainees. However, the Department of Corrections advises that resource constraints mean that this would require individuals to be held within their cells for 23 hours of each day. This treatment is not justifiable and would undermine the intention of affording better treatment to immigration detainees.
As noted above, the Chief Executive of the Department of Labour may already approve another place as a place of detention. However, establishing a place of detention outside Police or Corrections facilities is difficult, as immigration officers' powers to maintain detention are not adequate to enable ongoing secure detention. They are unable to detain people in any circumstances and would not be able to prevent an immigration detainee from leaving.
To address both international concerns and those of the government, it would be preferable to establish clear and transparent rules in legislation that allow immigration officers to undertake secure detention in a place declared a place of immigration detention by the Chief Executive of the Department of Labour. This would enable the Department of Labour to manage detention outside of Police or Corrections facilities on a short-term case-by-case basis, if practical.
Australia detains persons for immigration purposes in immigration detention facilities, including houses for families. These are run by a private company on behalf of the Department of Immigration and Multicultural Affairs. Persons may be held pending removal if they have arrived illegally, are in breach of permit conditions or were refused entry at one of Australia's entry ports.
Canada has immigration holding centres for low-risk detainees. Provincial Corrections facilities are used to house high-risk detainees, in particular, those with criminal backgrounds as well as those considered to be a danger to the public.
The UK has different types of centres in which asylum seekers and migrants are detained, namely 'removal centres' and 'immigration detention centres' (which are both managed by the private sector on behalf of the government). The UK also has completely separate holding centres for people who claim asylum at the border.
Two options are presented here. Option A would maintain the status quo. Option B would enable immigration officers to undertake immigration detention in a place designated by the Chief Executive of the Department of Labour. It would enable the Department of Labour to manage detention outside of Police or Corrections facilities on a short-term case-by-case basis, if practical. Option B is preferred.
Where secure detention is required, immigration detainees would continue to be held in Police and Corrections facilities. If it became practicable in the future, a dedicated unit for immigration detainees could be established within Corrections facilities. Similarly, existing detention arrangements with Police could be amended to provide for segregated detention similar to that required for mental health and youth offenders.
Maintaining the status quo would ensure that detention for immigration purposes is managed by people with the appropriate expertise. However, it does not provide the flexibility to accommodate immigration detainees in more appropriate facilities. Detention could not be undertaken outside of Police or Corrections facilities.
New Zealand would continue to come under criticism for placing immigration detainees with remand prisoners and convicted criminals in Corrections and Police facilities.
The legislation would give immigration officers the power to undertake immigration detention in places approved by the Chief Executive for that purpose. This would enable immigration officers and the Department of Labour to make use of the existing power of the Chief Executive to approve a place as a place of immigration detention. (This power is not currently used, as immigration officers do not have the power to hold people in secure detention in any circumstances.)
In practice, this would mean that the Department of Labour could develop options, other than the use of Police or Corrections facilities, for undertaking detention of people for immigration purposes. For example:
The use of this power is most attractive for short-term detention. The longer that detention is required, the more the costs and logistics indicate that Corrections or Police should undertake the detention. Actual decisions to approve a place for immigration decision would require further work and decisions by government.
The government has no intention of building a dedicated immigration detention facility and does not consider it practical to do so for the small number of immigration detainees that require secure detention. The capital and administrative costs associated with a completely separate immigration detention facility would be significant and would make such an option prohibitive. If the numbers of longer-term immigration detainees increased, establishing a separate regime within existing Department of Corrections facilities would be preferable.
To ensure the power was appropriately exercised, immigration officers would have to be appropriately delegated and trained. They would need to ensure their safety, and that of the person being detained, remained the first priority. Regular judicial oversight, as discussed elsewhere in this section, would also continue to apply.
Option B would allow the Department of Labour to hold immigration detainees in a place that does not have any association with criminality. This could reduce demands on Police and Corrections resources and would allow for holding people in more appropriate facilities and conditions. For example, a family group could be held together rather than requiring them to be held in separate cells. It would address international concerns over the use of Police facilities in these circumstances and enable the government to uphold the rights of the individual while maintaining the integrity of the immigration system.
The establishment of a detention role for the Department of Labour would require investment in terms of additional staff, training and support, as well as clear and robust operational procedures and guidelines.
The potential costs associated with this option would depend on the types of places designated by the Chief Executive for immigration detention, and the scale of the initiatives. Short-term facilities at an airport are likely to have the lowest cost. Overnight detention facilities would introduce significant increases in operational costs. As noted above, any actual proposal to establish a new place of immigration detention would require government approval.
12.6 Key question
|
|---|