As discussed in Sections 1 and 3, the purpose of this review is to ensure that the legislation enables New Zealand to both facilitate the entry of people that New Zealand needs and effectively protect our border. Sections 4 and 5 have focused on creating flexible and efficient systems that facilitate the entry and stay of visitors and migrants.
This section considers what legislative provisions are needed to set limits on who may enter and remain in New Zealand. Setting such limits both assists New Zealand to target the people that it needs, and helps maintain our safety and security.
This section does not focus on entry or exit by New Zealand citizens, or the exit of others with lawful authority to be in New Zealand. It considers situations where non-citizens are denied entry or, if they are already in New Zealand, that they be required to leave.
6.1 What legislative provisions are required for exclusion from entry to New Zealand?
Status quo
Section 7 of the Immigration Act identifies grounds that make a person ineligible to enter New Zealand (or ineligible to be exempted from the requirement to hold a permit). These include criminal convictions, previous removal or deportation, being a threat to public safety and involvement in terrorism.
As well as legislative grounds for refusal to grant entry, there are policy grounds. Entry can be refused on the basis of failure to meet minimum entry requirements applied to all visas and permits (for example, health or character requirements) and/or the specific policy criteria for the visa or permit type.
Section 7 of the Immigration Act, character policy and health policy all provide for entry to be granted despite someone meeting criteria that would normally render them ineligible to enter. Waivers (called "special directions") may be issued in relation to section 7 of the Immigration Act, and waivers may be made for health and character policy requirements. Immigration officers are delegated to make such decisions in most circumstances.
The factors used by immigration officers to determine whether a special direction or a waiver is warranted in the circumstances include the severity of the crime committed, the likely cost to New Zealand of medical conditions and the strength of connection to New Zealand (such as the applicant having immediate family in New Zealand). Government immigration policy provides guidance on such factors. Ultimately it requires a judgement to be made in each case. The nature of the power is highly discretionary.
When may a special direction be issued?
A person has previously been removed from New Zealand for overstaying their permit and is subject to a five-year ban. A special direction is given allowing them to re-enter New Zealand before the five-year ban is completed because they have a New Zealand partner and now have a child who is a New Zealand citizen. The person now meets residence policy, and the net benefit of allowing their entry is considered to outweigh any risk around their early re-entry.
What works well?
Section 7 of the Immigration Act provides clear grounds for refusal to grant entry. These grounds represent the bottom line for who is unacceptable to enter or remain in New Zealand. It is a key mechanism for New Zealand to express its sovereign power. Retaining a similar provision in new legislation is crucial.
A discretionary ability to make exceptions is also a vital feature of the current system. This allows health or character requirements to be waived in those cases where it would be in New Zealand's interests to approve a person who didn't meet the requirements.
What are the problems/opportunities?
This review provides an opportunity to strengthen and clarify exclusion provisions. The current legislative grounds for refusal to grant entry are not comprehensive, particularly because key health and character requirements are outside legislation. Even with the combination of current provisions in the Act and the supporting policy, risks to New Zealanders' interests have been identified. At the same time, the legislation must be flexible enough to allow the entry of individuals, where this desirable.
What do other countries do?
Both Canada and Australia have more comprehensive legislative provisions for refusal to grant entry than New Zealand. Canada has inadmissibility criteria which provide grounds for refusal to grant entry and for expulsion. These grounds include security concerns, human or international rights violations, criminality, health, financial reasons, misrepresentation, non-compliance with their immigration legislation, and having an inadmissible family member.
Australia has a universal visa requirement system and all visa applicants must meet public interest criteria. These include health and character provisions and national security concerns.
The United Kingdom's (UK) legislation allows the Secretary of State to make rules governing those who may enter or remain in the UK. The rules set conditions that must be met by those without the right of abode who wish to enter the UK. Those who do not meet requirements may be refused entry. Entry clearance may also be denied (or revoked) if false or misleading information was used in the application, if relevant information was withheld, or if the applicant's exclusion from the UK would be conducive to the public good.
Proposal
For the reasons noted above, the status quo is not considered desirable. The approach outlined below more closely meets the objectives of this review.
Include health and strengthened character requirements in legislation
The legislative grounds for refusing entry would be strengthened by including health and character requirements, as well as the existing grounds in section 7 of the Immigration Act. Generic statements would be included in the legislation, such as "must be of acceptable standard of health and good character". These requirements would be supported by further detail in policy.
The generic statements would be supported by provisions allowing the Minister of Immigration (or a delegated official) to make exceptions. Exceptions could be considered where, for example, a potential migrant was not of an acceptable standard of health, but was of high value to New Zealand and able to reduce the health costs to the taxpayer through medical insurance or private provision of care.
The term "health" in immigration policy is used not only in reference to the absence of disease and the protection of public health, but also to ensure that non-citizens do not impose excessive costs through disability. A person's state of health should allow them to undertake the activities for which they were granted entry.
Triggers likely to cause character concern would focus on the likely negative impact on New Zealand of that person entering. Past or likely future criminal behaviour is a primary trigger. Another example would be the current policy provision that excludes a person who would pose a risk to New Zealand's international reputation. This may arise from association with a regime that has committed war crimes, crimes against humanity or gross human rights abuses.
There would also be provision to exclude people on the grounds of connection to or membership of a particular group or regime, in addition to exclusion on an individual basis. This recognises that the need to view matters on a collective basis could, at times, outweigh individual interests. For example, New Zealand has imposed travel bans on members of governments and national representative sports teams in support of internationally-agreed sanctions. While some bans have been politically controversial, it is legitimate to use the sovereign right to control entry in response to wider international issues.
It would also be possible to modify the exclusion provisions that relate to terrorism. For example, the terrorism provisions could be expanded to include actively supporting or glorifying terrorism. They could be aligned more closely with existing anti-terrorism legislation, such as the Terrorism Suppression Act 2002, and international efforts to suppress terrorism, such as those mandated by United Nations' resolutions. Cases of refusing entry on the basis of the applicant's political opinions have resulted in controversy and court challenge on freedom of expression grounds in other jurisdictions. Exclusion provisions would need to align with New Zealand's international protection obligations, as outlined in Section 14: New Zealand's role as an international citizen.
The current provision that allows exclusion where there is reason to believe the person is likely to commit an offence against the Crimes Act or the Misuse of Drugs Act could be expanded to other offences of a similar gravity. For example, offences under the International Crimes and International Criminal Court Act 2000 could be included.
An additional character criterion could be added to allow New Zealand to exclude people on the basis of classified security information that cannot be divulged because of its classification. Such a criterion would be that the Director of Security recommended that a person should not be granted a permit or a visa on the basis of classified security information. Exclusion on this basis would involve decision-making by the Minister of Immigration and a special appeal process, outlined in Section 9: The use of classified information.
Benefits and costs
Placing health and character requirements in the primary legislation would provide stronger protection and send a stronger message about the importance of these factors. It would be consistent with the appropriate split between legislation, regulations and immigration policy, discussed in Subsection 3.3. These requirements could be considered so fundamental as to warrant parliamentary scrutiny if they are to be changed in the future.
There are possible risks around character judgements and possible challenges due to unjustifiable discrimination. However, the proposed level of detail on character requirements provides for transparent character assessments, while still having flexibility to respond to unanticipated situations.
Alternative considered
A combined exclusion and expulsion provision, similar to the Canadian inadmissibility provision, has been considered. The perceived simplicity of this option is attractive. However, it would require a high level of policy detail to support it, and to make distinctions for different classes of individuals (for example, review and appeal rights may differ depending on whether someone was being refused entry or expelled). There is a risk of losing specificity and accuracy if the provisions are combined.
Many of the potential benefits of this model could be achieved through drafting. For example, the refusal to grant entry provision could be adjacent to the expulsion provision in new legislation. For these reasons, this option is not preferred.
6.1 Key question
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6.2 What grounds and processes for expulsion should be established in the legislation?
This subsection considers the grounds and the processes that new immigration legislation should establish to enable a non-New Zealand citizen to be expelled from New Zealand. This section does not discuss options for the expulsion of refugees, which are discussed separately in Section 14: New Zealand's role as an international citizen.
What is expulsion?
Expulsion is a generic term that describes the current practices of removal and deportation. Revocation of permits is also a key element in the current expulsion system.
Status quo
Removal and deportation are the two key elements of the current expulsion system. Revocation of permits is also an important element in the system, as it either provides a basis for removal, or is a consequence of deportation. Grounds for revocation, removal and deportation are set out in various sections of the Immigration Act.
Residents are generally only liable for expulsion if they commit immigration fraud, do not meet significant conditions of their residence, or commit a serious criminal offence. Temporary permit holders can be expelled for a wider range of offending and behaviour than residents, as set out in table 4 below.
Table 4: Current expulsion system
Removal |
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Deportation |
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Revocation |
Temporary permits
Residence permits
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What works well?
The obligation on a person to leave New Zealand if they are here unlawfully is transparent and unambiguous, as is their liability for removal. These provisions send a clear message that non-citizens' authority to be in New Zealand is conditional upon certain obligations and responsibilities being met (in particular, maintaining a lawful immigration status).
Flexibility around the grounds for revoking a temporary permit allows New Zealand to have a high level of control over temporary entry. It is consistent with the purpose of regulating entry, stay and removal in New Zealand's interests.
What are the problems/opportunities?
Expulsion provisions are fragmented - New Zealand's expulsion provisions are spread throughout the Immigration Act. There is less clarity regarding liability for removal/deportation for residents compared to temporary entrants. This undermines the principle of understandable and accessible legislation.
Requiring a ministerial decision to initiate deportation and residence revocation - This may be unnecessary where the grounds for expulsion are clear and appropriate review and appeal mechanisms exist. The expulsion criteria in the Immigration Act are agreed by Parliament as unacceptable behaviour from a migrant that warrants expulsion. The existence of an appeal process allows for exceptions to be made. It may therefore be unnecessary for ministerial involvement in all cases.
Delays in removing residents liable for expulsion - It can be difficult to remove a resident even when grounds for expulsion are met, because the process must be initiated by a ministerial decision and there are multiple avenues of appeal. This undermines the ability of New Zealand to regulate immigration in New Zealand's interests and maintain integrity in the immigration system.
The ministerial workload is also increasing. In 2004/05, the Minister of Immigration signed 25 deportation orders and revoked eight residence permits. The 2005/06 forecast is for 51 deportation orders and 52 residence revocations. This increase is due to the recently established data match between the Department of Labour and the Department of Corrections and increased resource for permit fraud investigation. While there are no projections beyond 2005/06, it is anticipated that numbers will increase again, particularly if changes proposed in Section 10: Compliance and enforcement are agreed.
Delays in executing a removal or deportation order because of multiple decision points and subsequent avenues of review and appeal undermine the principle of effective decision-making. In particular, the permit revocation step unnecessarily creates delays.
Opportunity to speed up process through automatic liability for expulsion - Under the Immigration Act, a resident who meets the grounds for deportation is not automatically liable for expulsion. The process first requires that the Department of Labour is made aware of a conviction that could make the person liable for deportation. Then the department investigates the case and must locate the resident to conduct an interview regarding their situation. Full details of the case must be submitted to the Minister of Immigration for a decision on whether to make a deportation order. If the Minister agrees, the deportation order must then be served on the resident. It is only at this point that an appeal right is triggered.
In contrast, a person who is still in New Zealand after the expiry of their temporary permit is obliged to leave the country and is automatically liable for removal if they have not left or appealed within 42 days of becoming unlawful. This review provides an opportunity to expand the concept of automatic liability for expulsion to all expulsion cases. This would reduce the number of steps, while retaining appropriate appeal processes. This would be in line with the principles of effective and efficient decision-making.
What do other countries do?
Grounds for expulsion - Australia and the UK's grounds for expulsion are broadly similar to New Zealand's. Neither Australia nor the UK has consolidated grounds for expulsion in their Acts. Common grounds for expulsion include: provision of false information or failure to disclose information; change in circumstances; breach of visa/permit conditions; potential threat to the health, safety or good order of the community (including terrorist threats); and criminal conduct or associations. Australian legislation also includes potential prejudice to Australia's international relations and general character grounds.
Canada's expulsion provisions are included within a single "inadmissibility" section, which provides for exclusion as well as expulsion. The grounds include: security concerns, human or international rights violations, criminality, health, financial reasons, misrepresentation, non-compliance with the Immigration Act and having an inadmissible family member.
Consolidation of expulsion provisions in legislation - Both Australia and the UK spread expulsion provisions throughout the legislation (Australia's Migration Act 1958 and the UK's seven Immigration Acts). These expulsion provisions appear under the auspices of grounds for revocation (cancellation), removal and deportation. As noted above, Canada combines exclusion and expulsion provisions.
Proposal
For the reasons discussed above, the status quo does not meet the objectives of efficient and effective decision-making or transparent processes. The preferred approach is outlined below.
Amalgamated/streamlined expulsion provision
A new legislative provision on expulsion would:
- extend the existing concept of automatic liability for removal to deportation where an individual meets specified grounds (automatic liability would not mean that the process must end in expulsion, as exceptions and appeals would be possible)
- remove mandatory ministerial involvement in deportation decisions, while retaining the Minister of Immigration's ability to intervene
- create a single set of expulsion provisions for temporary and permanent permit holders
- remove the separate initial step of permit revocation that exists in the current system and include automatic permit revocation on departure once all avenues of appeal have been exhausted
- use the single term "expulsion", as used in this discussion paper, to refer to the procedures currently described as "removal" and "deportation", and
- streamline review and appeals against expulsion. (This component of the option is discussed separately in Section 7: Access to review and appeal.)
Grounds for expulsion
- having gained a permit as a result of administrative error, where the person has left the arrival hall
- staying in New Zealand after the expiry of a permit
- a conviction for obtaining a visa or permit through fraud or misrepresentation
- a finding by the Department of Labour that a person obtained their visa or permit through fraud or misrepresentation, or that their permit conditions have not been met (for example, working unlawfully on a visitor's permit)
- cancellation of refugee status after this was obtained through fraud or misrepresentation. (Cancellation is discussed in Section 14: New Zealand's role as an international citizen.) The Refugee Convention also provides for the expulsion of refugees in serious cases that may come under expulsion grounds g) and h) below.
- citizenship deprivation due to residence fraud
- a conviction for a serious criminal offence committed within up to ten years of residence being granted, depending on the seriousness of the offence, and
- being a threat to national security, including a terrorist threat.
- NOTE: Under grounds c), e), f) and g) above, the ability to defend the initial charge would constitute an appeal on the facts against liability for expulsion, as outlined below.
To ensure that the current flexibility around temporary permit revocation is not lost under this model, the current ability to revoke a temporary permit for any "rational and sufficient" reason would be retained. Such reasons can include the grounds for exclusion from entry that are discussed in Subsection 6.1 above, and where a temporary entrant commits a crime. There is a significant body of jurisprudence around this power that defines and limits it to what is fair and reasonable.
There would be one opportunity for a review or appeal on the facts in all cases except for expulsion on the grounds of a) or b) above. In some instances, this would take place as part of a court conviction process, in others, there may be an immigration-specific appeal on the facts. In all cases, there would be a departmental or independent humanitarian appeal. Options for review or appeal are discussed in Section 7: Access to review and appeal.
Process for expulsion
The standard process for expulsion would follow the steps outlined in Table 5 below. In all cases, there would be departmental or ministerial discretion not to proceed, even where liability for expulsion was established. This is consistent with current removal and deportation arrangements.
Table 5: Process for expulsion
Step 1: Establish liability for expulsion - Where a person met any one of the grounds outlined in paragraph 291 above, they would become automatically liable for expulsion. They would be obliged to leave New Zealand (as with the current removal legislation), or to present to the Department of Labour for consideration as an exception to policy. They may also be able to appeal against liability on the facts, as discussed further in Section 7: Access to review and appeal. (The expulsion provisions relating specifically to refugees are discussed in Section 14: New Zealand's role as an international citizen.)
Step 2: Allow for independent humanitarian appeal or departmental assessment - Once a person was liable for expulsion, an opportunity for independent appeal or a departmental assessment for remaining in New Zealand would be provided. Options for review and appeal at this stage in the expulsion process are discussed in Section 7: Access to review and appeal.
Step 3(a): If appeal or departmental assessment unsuccessful, expulsion proceeds - Expulsion proceedings would be activated by the service of an expulsion order. Any permit held would be automatically revoked on departure from New Zealand. Automatic permit revocation on departure would apply to those who depart voluntarily as well as those who depart under an expulsion order. (Current legislation already provides for automatic permit revocation in deportation cases.)
Step 3(b): If appeal or assessment successful, ensure appropriate authority to remain - In this scenario, no expulsion order would be served and the person could remain in New Zealand provided they had an appropriate authority to do so. In some cases, they may still have a valid permit. In other cases, they would need to have a permit granted. Granting permits to persons unlawfully in New Zealand is discussed further in Subsection 10.2.
Possible detention pending expulsion
The current ability to detain people prior to expulsion, if deemed necessary, would be retained (for example, the Department of Labour may have reasonable grounds to believe that the person would not depart voluntarily). Detention may only follow the issuing of an expulsion order. There may be a need to vary the standard process outlined in Table 5 above, to allow for detention as soon as liability is established (that is, to serve an expulsion order prior to a humanitarian appeal or assessment). In all cases, the reason for the detention would need to be justified and be subject to a warrant of commitment process within appropriate timeframes. (Detention issues are discussed further in Section 12: Detention.)
The role of the Minister of Immigration
The Minister of Immigration would be less involved in expulsion decisions than at present. While the Minister may still be involved (for example, to halt the expulsion process in an exceptional individual case), this would not be a requirement. The Minister could, for example, consider involvement in sensitive or complex cases. A process would need to be developed for referring complex or border-line cases to the Minister for decisions.
It could be appropriate for the Minister of Immigration to retain involvement in relation to people assessed as being a threat to national security (including terrorist threats).
Information for people liable for expulsion
People need be aware of what can make them liable for expulsion. To communicate the provisions in the Immigration Act, this information would be given at the time of visa or permit application and approval. It would also be clear on the Immigration New Zealand website. Where liability was established following a relevant conviction or departmental investigation, the department would inform the person of their liability and appeal rights.
How would this approach work in practice?
The Department of Labour discovers that a person had obtained their residence permit by means of creating a false identity. This is grounds for expulsion under the Immigration Act. The person appeals on humanitarian grounds to an independent appeal authority (discussed further in Sections 7 and 8). The appeal is dismissed. The person is then expelled from New Zealand and their residence permit is revoked on departure. This means that, throughout the appeal period, they remained on a valid residence permit. There was no need for ministerial involvement in this case.
A residence permit holder commits a serious crime after living in New Zealand for two years and is sentenced to four years in prison. This person is liable for expulsion under the Immigration Act. During the person's time in prison, they appeal against expulsion to an independent appeal authority on humanitarian grounds. If the appeal is dismissed, the person can be expelled immediately on release from prison. Ministerial involvement is not required.
A person overstays the validity of their student permit. As under the status quo, they are automatically liable for expulsion and must leave. If they do not leave, they can be expelled without ministerial involvement. Options for appeal rights in these cases are discussed in Section 7: Access to review and appeal.
Benefits and costs
This approach builds on the strengths of the existing expulsion system and reflects all of the proposed legislative principles outlined in Section 3: Purpose and principles. Coupled with proposed changes to associated review and appeal mechanisms, it would create a fairer and more efficient system. This more streamlined approach supports the principle of understandable and accessible legislation by making the system clearer for potential users. It also removes possible confusion over the terms "removal" and "deportation", by using the single term "expulsion" to cover any situation where someone is expelled from New Zealand.
The approach builds on the successful model of automatic liability for removal and extends this to all expulsion cases. Having automatic liability for expulsion, once particular grounds have been met, is an important message to communicate upfront. It strengthens the integrity of the immigration system by reinforcing the need to comply with immigration requirements.
In particular, this approach would streamline expulsion in cases involving citizenship deprivation on the basis of residence fraud and refugee status cancellation on the basis of fraud. Currently, in both cases, the same fraud needs to be established in the citizenship and refugee contexts and then in the residence revocation context. Each step has appeal rights. The proposed model would allow the fraud to be established once only, with single opportunities to appeal on the facts and on humanitarian grounds.
This option contributes to a fair immigration system by maintaining appeal avenues, the discretion not to expel and by not revoking the permit until all avenues of appeal are exhausted. This flexibility allows for the interests at stake to be recognised on a case-by-case basis. It also removes the current need for ministerial involvement in all residence revocation and deportation decisions.
Automatic liability could be seen as reducing the number of opportunities to make a case against expulsion. However, fairness is maintained by the appeal system proposed in Section 7: Access to review and appeal and by not revoking the permit until departure.
The move to the single term "expulsion" could be seen as equating brief overstaying in New Zealand with the serious crimes that currently warrant the deportation of long-term residents. Using a single term does not mean that there must be a single penalty attached. Options for graduated penalties associated with expulsion are discussed in Subsection 6.3 below, including differentiated ban periods.
Concerns may be raised about the potential effect that the single term "expulsion" could have on future re-entry into New Zealand and other countries. Changing to the single term would not have any effect on a person's likelihood of being allowed to re-enter New Zealand. Our exclusion provisions can be set to maintain distinctions between the various grounds for expulsion. The existing discretion to allow a person previously deported (or removed) from New Zealand to re-enter if considered appropriate would be retained.
Other countries' immigration legislation uses a range of terms for expulsion. New Zealand's current exclusion mechanism disqualifies any person deported from any other country at any time, with "deported" being defined in the broadest "expulsion" sense. Likewise, most other countries disqualify someone from entering if they have ever been expelled from another country (regardless of whether this was termed "removal" or "deportation"). As with New Zealand, most other countries also have the ability to make exceptions on a case-by-case basis based on the facts of the expulsion, not the term used to describe it.
Having liability for expulsion attached to the full spectrum of grounds listed (from the low level of administrative error to the more serious "threat to national security") may seem unreasonable for those at the lesser end of the scale. However, as discussed above, there would be flexibility in the system not to proceed with expulsion or to differentiate the subsequent effects of it.
6.2 Key questions
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6.3 What penalties should apply following expulsion?
This subsection considers what the consequences of expulsion should be for the person being expelled from New Zealand.
Status quo
The current penalty for removal is a five-year ban on returning to New Zealand. If a person is deported there is a permanent ban. In the case of a removal, an immigration officer can lift the ban if a new application appears to warrant this. In the case of deportation, senior officials have delegated power to issue a special direction allowing a person to return.
What works well?
The current system enables people to be treated differently, depending on the reason for their expulsion and the seriousness of any offending. This approach is consistent with the principle of fairness in the immigration system.
What are the problems/opportunities?
If the proposal in Subsection 6.2 above is agreed, the single term "expulsion" would be used to describe processes now known as "removal" and "deportation". Using a single term does not mean that a single penalty is required. The reasons for expulsion vary in seriousness, and it is fair that these are matched by proportionate penalties.
The incentives created by re-entry bans are a further issue. Under the current system, the ban period starts from the date on which the removal or deportation order was served and is unaffected by any attempt to return during the validity of their removal order. This means there is no penalty for attempting to re-enter prior to the completion of a ban.
What do other countries do?
All of New Zealand's peer countries take a graduated approach to expulsion penalties.
Australia draws a distinction in the penalties between removal and deportation. Removal can result in a permanent ban (depending on the circumstances surrounding removal). At the lower end of the scale, people who overstay in Australia by more than 28 days, and are either removed or leave voluntarily, are excluded for three years. Criminal deportees, including residents, are banned from Australia permanently.
In the UK, administrative removal leads to a short-term ban on re-entry and is applied to people in the UK unlawfully or who have breached the conditions of their stay. Deportation may be used where the Secretary of State deems it to be conducive to the public good. A deportation order may be revoked once the person has left the UK, but must be in force for at least three years, unless there are "most exceptional circumstances".
Canada has three types of expulsion. A departure order does not ban a person from Canada, provided they leave within 30 days. An exclusion order bans a person from returning to Canada for one year in most cases, or two years if the order was made on the grounds of misrepresentation. A deportation order means that authorisation is required before the person may ever return to Canada again. The type of order given depends on the grounds for expulsion and is prescribed in regulations.
Proposal
If the changes discussed in Subsection 6.2 are agreed, the status quo would not be workable. The preferred approach, outlined below, draws on the principles of the status quo, while providing more fairness through more appropriate penalties that reflect the degree of offending.
Differentiated ban periods
A system of differentiated bans would build on the current practice of applying different penalties based on the reasons a person was expelled from New Zealand. The graduated penalties outlined in Table 6 below arguably provide fairness through penalties that vary in proportion to the seriousness of the wrong-doing.
Table 6: Expulsion penalties and circumstances when they would apply
No ban |
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Two-year ban |
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Five-year ban |
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Permanent ban |
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The circumstances when each ban level applies would need to align with the grounds for expulsion outlined in Subsection 6.2 above. Exceptions could continue to be made on a case-by-case basis. A power to waive or reduce the ban period would be created for the Minister of Immigration (and could be delegated).
Any attempts, successful or otherwise, to return to New Zealand prior to the end of the two- and five-year bans should incur a penalty. It is proposed that the ban period be re-started from the date of an unsuccessful attempt to re-enter New Zealand, or from the date of subsequent expulsion.
Benefits and costs
This option would enhance the flexibility to treat people differently, depending on the reason for their expulsion and the seriousness of any offending. The proposed non-ban period and two-year ban provide for differentiation in the treatment of people in New Zealand unlawfully. Those who leave quickly and voluntarily are not subject to a ban, while those who wait to be expelled are. The longer an overstayer remains in New Zealand, the longer the ban. This graduated approach may provide incentives for early and voluntary departures, reducing the need for compliance action. Varying levels of penalties are also consistent with the principle of fairness in the immigration system.
The reduced penalties for people who leave voluntarily after more than a year in New Zealand unlawfully would provide disincentives for people to stay in New Zealand unlawfully for long periods, or wait until they are located by an immigration officer. Restarting the ban period for a person who enters or attempts to re-enter New Zealand prior to the completion of their ban period would provide a strong incentive not to make such attempts. This would assist in maintaining integrity in the immigration system.
Alternative considered
A further option is to apply a permanent ban on re-entry into New Zealand to anyone who has been expelled. A ministerial waiver provision would be retained to allow the ban to be waived if necessary or desirable. This option would be a firm response to those who fail to comply with the obligations of their permit when they enter New Zealand. However, a permanent ban on re-entry could also create a perverse incentive on those already in the country unlawfully or undertaking prohibited activities. It could encourage them to seek to remain undetected for as long as possible because they know they will never get a chance to return to New Zealand if expelled. For these reasons, it is not considered to be a desirable option for the future.
6.3 Key question
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