Section 13 - The Role of Third Parties |
Many people who engage with the immigration system acquire benefits along with responsibilities. These people include both individuals who come to New Zealand, and primarily New Zealand-based third parties who have a relationship with these individuals. Third parties include sponsors, employers and education providers. They also include the carriers (airlines and ships) that bring individuals to New Zealand.
Given that third parties who engage with the immigration system seek to benefit, it is appropriate for them to be responsible for ensuring that their actions contribute to New Zealand's immigration-related interests. For example, a sponsor who benefits from a family member moving to New Zealand could be responsible for a period for ensuring that the person does not become a burden on our welfare system. An airline that profits from carrying a passenger should be responsible for ensuring that the person is entitled to travel to New Zealand.
This section considers the provisions required to provide a legislative basis for third-party benefits and responsibilities in the immigration system, and appropriate means to ensure compliance. It also discusses ways to ensure that third parties have the information required to undertake their responsibilities.
This subsection considers when a person's immigration status should be known to third parties delivering publicly-funded services. Third parties that deliver publicly-funded services include government departments and organisations in the wider state sector, such as district health boards.
Current privacy legislation requires information about a person, including immigration status, not to be disclosed without that person's consent. Some exceptions to this rule apply in the immigration context. For example, Subsection 10.1.1 discusses when information must be disclosed to the Department of Labour to assist the location of people unlawfully in New Zealand. In another example, the Immigration Act allows the Department of Labour to disclose certain immigration and personal information to the Ministry of Social Development to allow that department to check a person's entitlement to social welfare assistance.
Immigration applicants consent to the sharing of health and immigration status information between the Department of Labour and health service agencies, by signing a declaration on immigration application forms. There is also a declaration authorising the Department of Labour to seek and share information with other government agencies, including overseas agencies 'to the extent necessary to make decisions about my immigration status'.
Disclosing information to the Ministry of Social Development ensures that people receive their correct benefit entitlement and that benefits are not granted to people who are not entitled to them. Information can be disclosed to other agencies, on a case-by-case basis, with the consent of the individual or for law enforcement purposes.
The New Zealand taxpayer bears the costs associated with the provision of free or subsidised government services to those who are ineligible for such services, but who cannot easily be identified as being ineligible. This issue is most visible for health service providers.
The Department of Labour can provide information about a person's immigration status to service providers with the individual's consent. Requests for this information are able to be made either in writing, in person at a branch office or through telephoning the department. However, the process for verifying that the individual has given their consent is time consuming and often impractical. In some cases, the current process may result in a barrier to those seeking to legitimately access services. The review provides an opportunity to ensure that there are no undue legislative barriers to sharing information between agencies delivering publicly-funded services.
Australia's immigration legislation allows the sharing of a person's immigration information with other government departments with an interest in any of the following matters - law enforcement, national security, national intelligence, education, health, community services, social welfare, employment, labour, taxation, statistics, quarantine, customs and excise.
The information includes a person's name, date of birth, citizenship, sex, class and subclass of visa, when the visa ceases to be in effect and passport number. More specific personal information can be shared with organisations and/or individuals who have obligations under immigration legislation, such as employers or education authorities.
In the UK, sharing immigration status information across government is possible for a similar range of reasons to those applying in Australia, but the rules are spread throughout statute and common law. In some cases, information is disclosed under data protection legislation. In others, immigration legislation provides approval for sharing information. There is detailed guidance for officials to ensure requests are handled according to the specific rules that apply. For example, many benefits are administered in the UK by a large number of local authorities. To ensure proper control of disclosures, these can only be made to named offices or office holders who have been approved to make status inquiries.
Canada's approach is governed by federal privacy legislation, which allows information disclosure in various circumstances, including where it benefits the person, where another statute allows it and where there is an information sharing agreement. Such agreements include those made with provincial, local and regional health and social services agencies.
The status quo is not considered to meet the objectives of this review because the government is not sufficiently protected from ineligible migrants accessing publicly-funded services. An approach has been developed that makes legitimate access to immigration status information straightforward for third parties that need to know for reasons of eligibility for publicly-funded services, while protecting individual privacy.
The Immigration Act would give authority for the Department of Labour to disclose immigration status information where it was needed by a third party to:
In practice, this approach would allow information to be released either through individual requests to the Department of Labour or through automated systems.
Safeguards - As non-citizens' specific consent would not be required for the disclosures to be made, there would need to be safeguards. These would include:
The success of an immigration status-checking system within the public sector may be enhanced if non-citizens do not suffer negative immigration consequences from having their status checked. The Department of Labour would therefore not be able to use information from status checks in enforcement action or investigations. For example, the Department of Labour would not be able to use the location of a hospital making a status check on an individual in New Zealand unlawfully to assist the location of that individual.
Information actually disclosed to third parties would be limited to what was necessary in the particular circumstances. Information not relevant to the third party's needs would not be disclosed. For example, in the health sector, it is likely to be sufficient to advise that a person is a resident, an Australian or a work permit holder.
In all cases, the requesting agency would need to supply sufficient biodata for the Department to verify the identity of the person correctly and provide an accurate report of immigration status. This biodata would usually include name, date and place of birth, nationality and passport number.
Strong controls on the information disclosed are especially important in the case of refugees. In order to maintain the protection that refugees seek in New Zealand, there would continue to be strong prohibitions on disclosure of the fact that a person has made a refugee claim.
In addition, New Zealand has obligations to children under the United Nations Convention on the Rights of the Child, including access to health care and education. The new legislation would need to uphold these obligations.
This option would remove the need to obtain individual consent for the disclosure of information related to eligibility for publicly-funded services, but would allow individual checks to continue. It would clarify in the legislation what information could be shared and with whom. This offers the opportunity to improve the speed and ease of access to information. There could be a reduction in the level of publicly-funded services provided to people who are not entitled to receive them.
It also seems logical that entitlement to publicly-funded services on the basis of immigration status should be supported by sufficient information-sharing legislation to make entitlement rules effective.
A fast and efficient status check system, with safeguards, would benefit non-citizens who are entitled to services. At the same time, there are risks to an individual's privacy inherent in any information-sharing process.
Prohibiting the Department of Labour from using status inquiries to support enforcement activities would reassure public sector service providers that they would not become a de facto immigration enforcement arm. Such a use of information may also introduce an unwanted incentive for some people to avoid accessing necessary services (such as emergency healthcare).
There would be costs associated with the provision of this information on a demand basis to third parties. These costs need to be weighed up with the fact that the proposal aligns with possible future developments in the immigration system. For example, technology offers the opportunity to increase document security through paperless systems for recording immigration status. Moving away from stamping visas and permits in paper passports would need to be supported by another way for third parties to check immigration status.
A non-legislative solution to give effect to an immigration status-checking system could be to place a consent statement on all immigration forms, including the passenger arrival card, which currently has no such consent statement. Failure to give consent or withdrawal of consent would affect a person's permission to enter or remain in New Zealand.
It is likely that many passengers do not fully take in the large amount of information presented to them on the arrival card prior to landing. While able to be relied on legally, many people are often unaware of all the consequences of the consent they have given. It seems likely that simply informing people, in background information on leaflets and application forms, that there are circumstances when immigration status information is disclosed is a better method of conveying information.
In addition, consent given on an individual basis by a visa-free visitor signing a declaration would require that the arrival card be located and checked if it were to be relied on to disclose information. While this may be feasible, it would add another administrative step to the management of arrival cards.
13.1 Key question
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This subsection considers what provisions are required to provide a strong legislative basis for the benefits and responsibilities linked to sponsors, and the mechanisms required to ensure they fulfil their responsibilities.
Sponsors are people who seek to have friends or relatives come to New Zealand, on either a temporary or permanent basis. They can also be employers who seek to fill vacancies in their business that cannot be filled by New Zealanders.
The Immigration Act provides that temporary permit applicants may be required to supply a written undertaking from a sponsor in relation to costs associated with:
Sponsors must generally be New Zealand citizens or residents. The statutory obligations of a temporary entrant sponsor are to provide a written undertaking and pay the government for any costs and expenses incurred due to any failure by the temporary entrant to comply with their permit conditions. Operational policy and sponsorship forms set out the expected level of financial support and assistance to be provided by the sponsor.
In practice, temporary sponsorship (sponsors of temporary entrants) applies to visa-required visitors and overseas workers who cannot otherwise demonstrate that they have sufficient funds to cover their accommodation and maintenance while in New Zealand. Students are not formally sponsored, but an individual may provide a financial undertaking to meet the policy requirement that the student has sufficient funds for his or her maintenance while in New Zealand.
In 2004/05, 36 percent of general visitor visa applications (36,983 applications) were recorded as requiring a sponsor - up from only 14 percent (or 13,651 applications) in 2000/01. The top five countries of visitor applicants requiring a sponsor in 2004/05 were China, India, Fiji, Samoa and Tonga.
There is no explicit legal basis for sponsorship responsibilities for sponsors of permanent residents. The authority to require sponsorship and set sponsor obligations is set out in immigration policy. Permanent resident sponsorship is currently only required for family migrants (excluding partners and dependants). These sponsorship obligations relate to the provision of accommodation and maintenance. In 2004/05, around 4,360 permanent migrants were approved residence under policy requiring a sponsor.
Sponsorship provides a system for managing and sharing risk. Risks around access to social services are reduced, and immigration-related costs (such as locating and removing people who remain in New Zealand unlawfully) may be recovered.
Sponsorship also allows some higher-risk applicants to enter and remain in New Zealand who would otherwise be unable to do so - in particular, visa-required temporary visitors from higher-risk countries. Having sponsorship arrangements to facilitate the entry of these people is of benefit to New Zealand sponsors, as it allows them to spend time with their friends and relations.
As some employers act as sponsors, sponsorship facilitates the entry of migrant workers who contribute to New Zealand's economic growth. The employer benefits by being able to fill vacant positions, and there is an overall contribution to the economy. It assists in meeting the objective of regulating entry in New Zealand's interests discussed in Section 3: Purpose and principles.
Policy intent unclear - The underlying intent of sponsorship is unclear. The focus of current legislation and policy on the recovery of costs suggests that the primary purpose of sponsorship is to reduce the financial risk to the government. While this is one benefit, it is also in New Zealand's interests to allow some people to enter New Zealand when they would otherwise be unable to do so. For example, they may benefit employers by contributing needed skills and labour, or visit friends or relatives in New Zealand and build these relationships. It is important that these objectives are made clear.
Lack of clarity/transparency around obligations - Sponsorship responsibilities are scattered across legislation, operational policy and sponsorship forms. This has reduced clarity around the benefits and responsibilities of sponsorship and undermines the principle of understandable and accessible legislation. Sponsors and applicants tend to view sponsorship as a 'paper exercise', rather than a legal undertaking, and are often not aware of the full extent of their responsibilities. A key concern is that there is no explicit legislative provision for responsibilities to be placed on permanent migrant sponsors.
Restrictions on who may sponsor - Legislation currently restricts sponsorship to natural persons. This means organisations or companies are unable to sponsor migrants. The Talent Visa (Arts, Culture, Sports) policy is one area where problems have arisen due to this restriction. For example, the Royal New Zealand Ballet and the New Zealand Symphony Orchestra are unable to directly sponsor migrants and instead have to find individuals to undertake sponsorship.
Low incentive to comply/difficulties enforcing responsibilities - At present, sponsor compliance is more likely to result from the perception of negative consequences for failing to meet sponsor responsibilities than from the actual enforcement of those responsibilities. This is primarily due to the time and cost involved with recovering debt.
Court action to recover costs and expenses from sponsors is often impractical due to the relatively low cost owed by each sponsor. In practice, the Department of Labour uses debt recovery agents in preference to taking court action. The Department of Labour established data-matching with the Ministry of Social Development in 2005 in order to allow the recovery of any costs relating to sponsored permanent migrants accessing social welfare in their first two years of residence.
While there is scope for tightening the wording of sponsorship forms and undertaking greater enforcement activity within the existing legislation, there is also an opportunity to provide for other mechanisms for ensuring sponsors fulfil their responsibilities. There is, for example, an opportunity to more explicitly extend the existing legislative provisions for requiring bonds to sponsors.
Bonds are upfront payments of a specified amount that a sponsor could make to the Department of Labour. They could be held in trust and returned to the sponsor when it has been shown the visitor, student or worker has fulfilled their permit obligations. If shown otherwise, the bond could be used to cover any costs to New Zealand (such as health or welfare costs) that have been incurred.
Australia has a broad enabling provision in its legislation allowing regulations to prescribe criteria for sponsors under any visa category. A business can be a sponsor where it is the direct employer and the undertaking is made by a person with legal authority to act on behalf of the business. The legislation includes examples of sponsorship undertakings, including costs relating to medical treatment, or locating, detaining and removing the person sponsored. Australia tends to focus on managing risk upfront through sponsor bonds (between $5,000 and $15,000), which are required if there are residual concerns that an applicant may not comply with the conditions of their visa. In 2003/04, a bond was requested for 68 percent of Australian family visitors.
Canada also has an enabling provision in its legislation that provides for sponsorship, with detailed requirements set out in regulations. Sponsors undertake to provide accommodation, maintenance, healthcare and social assistance, and are liable to reimburse the government for any benefits received for the first 3-10 years of residence (depending on the relationship with the sponsored person). Sponsors are ineligible to sponsor further migrants while they have any outstanding sponsor debts. Family sponsors are ineligible if they have been convicted of an offence of a sexual nature or an offence that results in bodily harm. Some provinces have minimum sponsor income requirements to ensure they can meet their undertakings.
For the reasons noted above, the status quo is not considered optimal. Two options are presented. At a minimum, Option A is required to provide a strong, coherent legislative basis for sponsorship benefits and responsibilities. Option B could be implemented alongside Option A and would provide the ability to enforce sponsor responsibilities better and thereby maintain integrity of the immigration system. This is the preferred approach at this stage.
The legislation would explicitly allow for the sponsorship of both temporary and permanent applicants. Legislative provisions would set out the responsibilities of sponsors and the minimum criteria for eligibility as a sponsor. The detailed sponsorship requirements and eligibility criteria would be provided in government immigration policy.
The types of responsibilities set out in legislation are likely to include the matters already covered in the Immigration Act, such as accommodation, maintenance and removal. They could also include the costs of publicly-funded healthcare, given this is clearly an area where New Zealand may incur a significant expense.
It should also be possible for sponsorship obligations to be imposed on businesses and organisations, including employers who make job offers as part of a potential migrant's residence application. Minimum eligibility criteria for individuals acting as sponsors would include requirements to be a New Zealand citizen or permanent resident. The legislation could also provide for organisations and businesses to sponsor temporary visa and permit applicants.
As part of strengthening the legislative basis for sponsorship, a general object statement outlining sponsorship benefits and responsibilities could be included in the new legislation.
An object statement might be along the following lines:
The objective of sponsorship is:
Providing a stronger legislative basis for sponsorship would assist in clarifying the benefits and responsibilities of sponsors and ensuring that the responsibilities are enforceable. This is consistent with the principle of understandable and accessible legislation. It is particularly important in the case of sponsorship of applicants for permanent residence. The inclusion of more detailed requirements in operational policy would provide the flexibility to update provisions as required.
Enabling businesses and organisations to act as sponsors would broaden the potential pool of sponsors. This would reflect business realities, where an application is not always sponsored by one individual. For example, a high-risk potential worker seeking to come to New Zealand could be sponsored by an employer. The employer would benefit from filling a vacancy in their business. The applicant would be allowed to come to New Zealand rather than being refused a visa. Their presence would benefit New Zealand through the contribution they made to the economy.
Eligibility criteria for sponsorship would need to be robust to avoid problems with enforcing sponsor responsibilities. The risk of individuals declined sponsorship status (due to previous offending or a poor sponsorship track record) attempting to sponsor under a company name would also need to be managed. As noted, Australia requires business undertakings to be made by a person with legal authority to act on behalf of the business. In New Zealand, we would want to ensure that a person who signs a sponsorship application on behalf of a business has appropriate authority to do so.
Whether or not an object statement is included in the legislative provisions on sponsorship is a matter of legislative drafting. An object statement would clarify the intent of the policy, and guide the development of regulations and policy and subsequent decision-making.
Legislative measures for strengthening incentives to comply would include:
Increased immigration sanctions or consequences for the sponsor if they fail to meet their sponsorship obligations would strengthen incentives to comply with responsibilities. For example, sponsors could be prohibited from sponsoring other people while they have any outstanding sponsor obligation debts. The legislation would enable immigration sanctions to be applied, with the detailed provisions set out in government immigration policy.
Bonds - A further aspect of this option is to align or amalgamate the current legislative provisions allowing sponsors to be required to pay a bond upfront with the sanctions regime. The prospect of monetary loss would encourage sponsors to ensure that they and the person they sponsored meet their responsibilities to the immigration system. The bond would be forfeited if the applicant (and consequently the sponsor) failed to meet responsibilities. This would be similar to the Australian approach. The current legislative provision for sponsor bonds requires supporting operational policy and has not been activated to date.
In both cases, some discretion would be available to waive the consequences in appropriate cases, although it would be important to maintain fairness and consistency. For example, a sponsor might be exempted from meeting their obligations in cases of a relationship breakdown or family violence.
As noted above, there are also several operational responses that could be implemented to improve enforcement of sponsorship responsibilities to match the benefit sponsors receive. For example, there is scope for increased monitoring and data-matching with the Ministry of Social Development and health providers, and directing increased resources towards enforcement. This could include additional information-sharing that would build on the provisions discussed in Subsection 13.1. The processes and sponsorship forms used could also be reviewed to achieve more efficiency and effectiveness.
Ensuring sponsors fulfil their responsibilities is critical to the integrity of sponsorship requirements. The ability to give and withdraw 'approved sponsorship status' would be an effective way of providing incentives to comply. The use of a sponsor bond would also create a strong compliance incentive, and avoid issues relating to cost recovery given there is an upfront payment.
Sponsor bonds would increase compliance costs on sponsors. This could make it difficult for some applicants to find sponsors and for some New Zealand citizens and residents to act as a sponsor. Further policy work would require a detailed cost/benefit analysis, with particular consideration given to any associated economic impacts on New Zealand.
13.2 Key questions
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This subsection considers what provisions are required to provide a strong legislative basis for facilitating employer benefits and enforcing responsibilities.
Employer responsibilities in the Immigration Act are expressed as prohibitions (offences). A three-tiered approach is taken to employer offences as follows:
The Immigration Act provides maximum penalties of a $10,000 fine for a strict liability offence, a $50,000 fine for knowingly employing an unlawful worker and a $100,000 fine and/or seven years' imprisonment for committing an exploitation offence. The level of penalty for a third-level offence reflects how seriously the government takes the exploitation of employees.
Government immigration policy on employer sponsors also outlines some conditions of sponsorship. Some of these conditions set a higher standard for employer sponsors than the minimum standards under employment legislation. For example, accredited employers under the Talent Visa policy must be in a sound financial position, have human resource policies and have processes of a high standard. They must also have a commitment to training and employing New Zealanders.
The Immigration Act establishes a clear responsibility on employers to only employ people who are entitled to work in New Zealand. A tiered approach to offences and penalties enables more severe consequences for knowingly breaching this responsibility and for more serious exploitation offences. Additional employer obligations established in policy, such as the 'good employer' standard for accredited employers, provide an incentive for those who wish to access migrant workers to maintain good employment practices.
No legislative basis for other employer obligations - All government immigration policy is broadly enabled under the current Immigration Act. This allows the government to determine the minimum policy requirements that employers must meet. There is no explicit provision that outlines the consequences of failing to meet responsibilities (such as inability to recruit further overseas workers). This has reduced clarity and transparency around employer sponsorship benefits and responsibilities that sit outside legislation.
Checking entitlement to work - Employers who hire someone not entitled to work in New Zealand are committing an offence. There is, however, a wide range of documents that can prove a person is entitled to work. While Department of Labour information on this is available and education visits to employers are undertaken, some employers, especially small businesses, may have difficulty in maintaining the knowledge required to check work entitlement. Employers can confirm work entitlement with the department, but only with the employee's written consent. This creates an administrative burden for the employee, employer and the department. It does not support the goal of an efficient immigration system.
Difficulty enforcing strict liability offence - While employer offence provisions send a strong message to employers not to employ people who are not entitled to work in New Zealand, no strict liability prosecutions have been made since the provision came into effect in June 2003. The ability of the Department of Labour to enforce the responsibility under the Immigration Act is limited by the defence of 'reasonable excuse'. This defence is available to employers who have sighted an employee's tax code declaration form stating that the person is lawfully entitled to work in New Zealand. There is no requirement on employers to verify the accuracy of this declaration.
Undermining incentives to comply with obligations - The inability to enforce employer responsibilities undermines the incentives for lawful work. It then undermines the objective of the immigration system to regulate entry and stay in New Zealand's interests. It encourages people to enter New Zealand to work unlawfully and enables people already here unlawfully to sustain their presence. Unlawful workers are at greater risk of exploitation through sub-standard pay and employment conditions. Their presence in the workforce may also reduce conditions and opportunities for New Zealanders and other lawful migrant workers.
High threshold for exploitation offence - The Immigration Act sets employer responsibilities to comply with core employment responsibilities at a low level. In addition to the sanctions for employing people not entitled to work, the Immigration Act contains an exploitation offence in the Immigration Act that covers serious breaches of obligations to workers. Of course, there are separate enforcement options under the relevant employment laws. There is a risk of signalling that employers' obligations to foreign workers are less than those owed to New Zealand citizens and residents.
Interface between immigration and employment law - New Zealand employment law does not distinguish between New Zealand workers and overseas workers. There may, however, be circumstances where the employment rights of overseas workers differ from New Zealanders' rights. For example, migrant workers only have a right to work for the length of their work permit while a New Zealander employed on a temporary basis may, in some cases, have a legitimate expectation of further employment.
In Australia, employers face a strict liability offence (with a AUD10,000 fine) for employing someone not lawfully entitled to work. An internet facility is available for registered employers to check immigration status and any work restrictions (such as number of hours or specific employers). The maximum penalty for knowingly employing illegal workers ranges from AUD13,200 for an individual to AUD66,000 for a body corporate and/or two years imprisonment.
In Canada, employers have clear responsibility for ensuring that workers have authority to work. Guidelines clearly state that having a Social Insurance Number is not proof that a worker has a valid work permit. An employer who employs a foreign national without authority is liable:
UK employers are liable for a maximum fine of £5,000 for employing unlawful workers (or an unlimited fine in a Crown court). Legislation provides a statutory defence for employers who have checked and copied specified documents when recruiting. These documents include a UK passport or identity card, or a passport showing entitlement to work in the UK by way of a residence permit, exemption or work visa. Under current proposals, an employer who employs an unlawful worker would be issued with an immediate fine of £2,000. There is also a proposed offence of knowingly employing an illegal worker, with a maximum custodial sentence of two years and an unlimited fine.
For the reasons noted above, it is considered that the status quo needs strengthening. Two options are presented. At a minimum, Option A is required to provide a strong legislative basis for clearly detailing employer responsibilities and is considered desirable. Option B could be implemented alongside Option A and would provide the ability to better enforce employer responsibilities, and thereby maintain integrity of the immigration system. It could, however, reduce the privacy of individuals and could have some negative effects on migrant and ethnic communities. Submissions are therefore sought on whether Option B should be developed and, if so, how.
Provision would be made to enable specific responsibilities to be imposed on employers. At a minimum, this would include an explicit legislative reminder that employers comply with all New Zealand employment laws. To avoid any confusion about the interface between immigration and employment law with respect to ongoing employment, the legislation would make it clear that a migrant worker is only entitled to undertake employment for the period of their work permit.
The legislation would also enable further responsibilities to be established in government immigration policy. It would clearly establish the consequences of failing to meet those responsibilities. This would, for example, provide the basis for the 'good employer' requirements under Talent Visa policy that enable employers to recruit overseas workers. It would be an enabling provision, giving flexibility to impose requirements on employers on a case-by-case basis.
As discussed above, both employers and New Zealand benefit from the ability for New Zealand employers to employ migrants and temporary workers. Having a clear legislative framework for the role of employers would help provide a strong foundation for the range of policy initiatives underway to facilitate New Zealand employers' needs for migrant workers.
Including specific provision for responsibilities to be placed on employers is consistent with the principle of understandable and accessible legislation. While employers are already required to comply with New Zealand employment legislation, including a reminder of this requirement in immigration legislation would reinforce to employers that every person who is legally entitled to work in New Zealand is entitled to this protection. Clarifying that work permit holders are only entitled to undertake employment for the period of their work permit would make it clear that there can be no expectation of ongoing employment and would protect New Zealanders' ability to access local employment opportunities.
Enabling additional employer responsibilities to be set in policy would mean that requirements such as the existing 'good employer' requirements in the Talent Visa policy could be established as ongoing obligations on employers, and not simply a one-off requirement to be met at the time of obtaining (or renewing) accreditation. It would also provide the basis for establishing clear immigration consequences if employers fail to meet their responsibilities (for example, the loss of accredited employer status). This would allow the Department of Labour to address non-compliance without having to take court action, and may provide a strong incentive to employers.
Imposing additional responsibilities on employers would increase compliance costs for employers. The costs and benefits of introducing a new policy obligation on employers would need to be carefully considered in each instance.
The enforceability of the current strict liability offence might be improved by:
The critical issue for employers would be how they can be satisfied that a prospective employee is lawfully entitled to work and what compliance costs this might involve. Effective tools would need to be in place to support their obligation in a way that does not inhibit their ability to recruit. These tools would include better education and information. A further operational option would be to provide an internet or fax system whereby registered and approved employers could undertake checks that individuals were entitled to work. (This approach is used in Australia.)
This option might enhance the enforceability of existing offence provisions and help to maintain integrity in the immigration system. Employers would have to take steps to confirm that a prospective employee is legally entitled to work, thus sharing the responsibility for ensuring that only those who are entitled to work in New Zealand do so. This would help to reduce the problem of people working unlawfully in New Zealand.
A requirement for employers to check immigration status would impact on all prospective employees, including New Zealand citizens. While most citizens would easily be able to establish their entitlement to work, there could be compliance issues for some citizens who do not hold a passport or birth certificate (or do not wish to disclose details such as their date of birth).
More serious concerns about this approach include whether it could lead to:
Removal of the tax code declaration reasonable excuse would support the responsibility to positively check an employee's immigration status. It would reinforce the need to undertake a reliable check of their status and would reflect the reality that a tax code declaration is not a good indication of a person's ability to work. In practice, this excuse has made the strict liability provision unenforceable. However, the concerns listed above are real and would need careful consideration.
13.3 Key questions
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This subsection considers how the legislation should facilitate benefits for education providers and enforce their responsibilities.
Like employers, education providers' major responsibility under the Immigration Act is expressed as a prohibition. It is an offence for anyone conducting a course of study or training to knowingly allow a person to undertake the course when the person is not entitled to under the Immigration Act.
A maximum fine of $2,000 is available for breaching this requirement. An education provider is only deemed to have acted knowingly, if, at any time within the preceding 12 months, they have been informed in writing by an immigration officer that the person is not entitled to undertake the course.
In addition to responsibilities under the Immigration Act, current immigration policy requires that all education providers offering course places and training to international students must be signatories to the Ministry of Education's Code of Practice for Pastoral Care of International Students (the Code). Any course of study or training must be accredited or approved by the New Zealand Qualifications Authority. This means that additional obligations are placed on education providers under the Code and by the New Zealand Qualifications Authority.
There are a number of Code requirements that are directly relevant to the immigration system. Among other things, signatories of the Code are obliged to:
Education providers' responsibilities under the Immigration Act and the Code support and reinforce each other. The majority of obligations sit in the Code. This seems appropriate, as the Code is concerned with the pastoral care of international students, and immigration status is just one component of this.
A key problem is that there is a low incentive for education providers to comply with immigration responsibilities. The Department of Labour is aware that some education providers are not doing so. This undermines the objective of maintaining integrity in the immigration system. It is likely to be the result of a number of factors, including:
There are opportunities to improve the coordination between government agencies working with education providers. These opportunities are mostly located at the policy and/or operational level and are not within the scope of this review.
Education providers in Australia play a more active role in terms of international student compliance and monitoring than their New Zealand counterparts. For example, they are obliged to advise the Department of Immigration and Multicultural Affairs if a student breaches their visa conditions. Immigration officers also have strong powers for requiring information to monitor compliance.
Australia has a mix of sanctions for non-compliance, including:
In the UK, responsibility for education provider obligations is outside of the immigration arena and falls within the work of the Department for Education and Skills. The Department has a Code of Practice which includes guidance on enrolling overseas students.
For the reasons noted above, the status quo is not considered adequate to manage immigration risks associated with New Zealand's international education industry. Two options are presented. At a minimum, Option A is required to reinforce the responsibilities of education providers. Option B could be implemented alongside Option A and would provide the ability to better enforce education provider responsibilities, and thereby maintain integrity of the immigration system. This is the preferred approach at this stage.
Immigration legislation would include a specific requirement that education providers offering places to international students must be signatories to, and comply with, the Ministry of Education's Code of Practice. The reference would be made to any code of practice established under the Education Act so that any changes to the name or form of the Code would not require a further change of legislation.
Including a reference to the Code in immigration legislation would reinforce the fact that providers have a range of responsibilities in relation to international students. The Code refers to Immigration Act obligations, and doing the same in the Immigration Act would send consistent messages about complying with the full suite of responsibilities. Guidance would need to be provided on whether sanctions for any breach would be applied through immigration legislation or the Code.
There are policy and operational level responses which could improve both incentives for education providers to comply with their responsibilities and the ability of government agencies to enforce responsibilities (for example, improved information sharing or increased compliance resources). The Ministry of Education and the Department of Labour, in consultation with the export education industry, are currently undertaking policy work to identify options for improving monitoring and reporting in the sector.
The ability to enforce education provider obligations would be further strengthened through:
A more flexible penalties regime would enable instant fines (infringement notices) for minor breaches by education providers. Prosecutions and immigration consequences could be used in cases of more serious or ongoing breaches. Immigration consequences could include suspension or removal of the education provider as a Code signatory, with the flow-on effect that student permits could no longer be issued for study with that particular provider.
This option has the key benefit of strengthening incentives for education providers to comply with their immigration-related responsibilities, supporting the integrity of both the export education sector in New Zealand and the immigration system.
Enabling immigration officers to require information from education providers would assist the Department of Labour in fulfilling its compliance monitoring functions. It would also provide an alternative mechanism for identifying that a provider had knowingly enrolled a student who did not have appropriate authority to study (in addition to formal notification by an immigration officer). Other agencies such as the New Zealand Qualifications Authority already have the power to request information from education providers, and such a power would be consistent with powers already held by immigration officers in comparable circumstances.
Introducing a more flexible penalty regime would allow for a range of responses to differing degrees or frequency of breaches of immigration responsibilities. This is preferable to relying on the single (and currently ineffective) offence provision with a $2,000 fine. It is therefore likely to improve enforceability and allow responses to be more appropriately targeted to the particular circumstance.
A new penalties system would require initial funding to set up and ongoing funding to administer. Consideration would need to be given to which agency would be responsible for administering and monitoring the scheme. Providers may view such a system as increasing their compliance costs - however, no new obligations would be imposed, just greater incentives to comply with existing ones. Likewise, the requirement for education providers to provide information or documents to immigration should not pose any new compliance costs, as providers are already obliged to hold such information and make it available to other agencies.
13.4 Key questions
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The government needs to work with carriers to ensure that both parties benefit from the immigration system and that systems are in place to allow carriers to fulfil their responsibilities. The benefit to the government is in ensuring the integrity of the system. Airlines benefit from the ticket sale for travel to New Zealand. Airlines also benefit from systems that help them to check that their passengers are permitted to travel to New Zealand, as airlines must carry out of New Zealand a person who is refused entry.
Any legislative requirements for carriers would need to allow the immigration system to manage increased mobility and heightened security concerns, as well as allowing the carriers to manage their businesses. Legislative requirements are not intended to create unnecessary difficulties for carriers in doing business. Obligations should be clearly defined to support the goal of understandable and accessible legislation.
In the context of the Immigration Act:
Carriers have a number of obligations to meet before departing another country for New Zealand, including:
Various offences exist in the Immigration Act for failing to meet these obligations, with fines of up to $10,000 for the person in charge of the craft or up to $20,000 for the carrier.
New Zealand is a signatory to the Convention on International Civil Aviation. The International Civil Aviation Organisation (ICAO) is responsible for enforcement of the Convention, and aims to provide a unifying influence in international civil aviation by setting standards and universal practices. New Zealand has adopted many ICAO standards.
The current legislation establishes comprehensive obligations on carriers. Sea-going vessels generally meet their responsibilities in this area well. For example, in the relatively rare instance of locating a stowaway on a ship, the carrier will typically take immediate steps to return the person to the place of origin. (Returns usually occur via air, as it is uncommon for a ship to go directly back to its departure port.)
New sections of the Immigration Act enacted in June 2004 allow the department to require carriers to use the APP system. APP has prevented over 1,000 people who presented a risk from entering New Zealand.
The fundamental problem is that there are difficulties in enforcing obligations on airlines. Immigration staff issue notices of infringement at the airport to airlines that fail to fulfil their obligations, but the infringement notices have no legislative basis. They cannot be used to enforce airlines' legal obligations. Prosecution of airlines rarely occurs because it is expensive, time-consuming and resource-intensive.
Failure to prosecute means that there is no incentive for airlines to meet their obligations. The high frequency of offences (such as boarding passengers who do not have adequate documentation or contrary to APP directives) means that risks are not always being managed outside New Zealand. Border officials have to investigate the effect of airline breaches when people who would not otherwise be allowed to enter New Zealand arrive at the border. This is a resource-intensive process and detracts from the ability to process other passengers in a timely manner. There are also costs for the traveller who may not have travelled to New Zealand if they knew they would be turned around on arrival.
Some minor adjustments are also required to the legislation to enhance its clarity and effectiveness to provide for and enforce carrier obligations. These are summarised in Option A below.
Australia, Canada, the UK and the US all have similar obligations, which are managed by instant fine regimes. Penalties are as follows:
Both Australia and the UK allow officers to waive infringement notices (and therefore the fine). This allows the airline to escape penalty for an occasional lapse, whilst still allowing the airline to be penalised for repeated breaches of their obligations.
Canada has negotiated Memoranda of Understanding with the airlines, which set out performance standards. As the airlines' degree of variance from these standards rises, the level of fine imposed increases. There are three broad levels of fine linked to the degree of variance from performance standards:
Two options are presented here - the retention of the status quo, with only minor clarifying amendments, and the introduction of an instant fines regime. At this stage, there is no clear preference for Option A or Option B.
This option would effectively preserve the status quo, with only minor amendments made to the legislation for the purposes of clarity and effectiveness. Provision for APP and liability on carriers to remove anyone who proceeds through the system without the proper authority would be retained. New Zealand would continue to apply ICAO standards.
The minor amendments would include:
This option would largely retain the existing legislative provisions, which would mean minimal adjustment. The proposed changes would correct small operational anomalies and communicate more clearly to carriers the exact nature of their obligations, thus providing for understandable and accessible legislation. The amendments would be consistent with ICAO standards and with the practice in ICAO member countries (including Australia, Canada and the UK). This option would not, however, address the current difficulties in enforcing airline obligations.
The legislation would enable the Department of Labour to issue instant fines (infringement notices) to carriers who fail to meet their obligations. The level of instant fine would vary depending on which obligation was not being met, and officers would have discretion not to issue a fine depending on the circumstances.
Introduction of instant fines would enable prompt action to be taken in response to non-compliance by carriers. This would contribute to the objective of providing for integrity in the immigration system. Varying levels of fine would ensure that the penalty was closely associated with the offence committed. While each penalty for an individual breach of obligation may be small, the accumulation of fines could achieve a strong incentive for carriers to comply with their obligations. The introduction of instant fines would also help to bring New Zealand practice in this area in line with comparable countries.
There would be some resource implications attached to this option. Administrative arrangements for managing any new instant fines regime would need to be worked through, although the Department of Labour already has experience in that respect in administering the Health and Safety in Employment Act. It would also be important to ensure that there were clear guidelines in place regarding the fines regime, giving specific details about what penalty applied in what circumstance.
13.5 Key questions
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