Introduction

This report summarises the submissions made in response to the discussion paper on the review of the Immigration Act 1987 (the 1987 Act) that was released by the Minister of Immigration in April 2006. In total, 360 unique submissions were received, representing the interests of 3,985 individuals and organisations.

Section 3: Purpose and Principles

Just under half the organisations and approximately 75 percent of individual submitters who commented on the purpose of New Zealand's immigration legislation indicated that they agree with the purpose suggested in the discussion paper. Many submitters considered that other interests should also be reflected in the purpose statement including: a commitment to human rights and meeting New Zealand's international obligations, recognition of the Treaty of Waitangi, the importance of the principles of natural justice, fairness and transparency, the benefits of immigration, the importance of settlement, family interests, the well-being of children and recognition of New Zealand's special relationship with Pacific Island nations. Some submitters considered that the purpose of the legislation should simply be to regulate the entry of non-citizens. Others referred to protecting the interests of New Zealanders and the New Zealand way of life.

Similar comments were made in respect of the discussion paper's statement of New Zealand's immigration-related interests. Approximately 60 percent of organisations and 70 percent of individual submitters agreed with the interests as stated. Some submitters expressed concern that the emphasis on issues of security was at the expense of other interests. Submitters made a number of suggestions on the wording of these interests. Some submitters considered that New Zealand's population interests should also be included. Approximately 90 percent of submitters supported the inclusion of a purpose statement in the legislation.

Approximately half the organisations and 75 percent of individual submitters who commented on the principles that should underpin immigration legislation indicated that they agree with the principles outlined in the discussion paper. Submitters expressed particularly strong support for the principle of fairness. Submitters suggested a number of other principles to underpin immigration legislation and some submitters advocated taking a human rights approach. Some submitters considered that the principles should be set out in the legislation. A number of submitters commented that section 149D of the 1987 Act, which restricts the Human Rights Commission from becoming involved in immigration matters, is inconsistent with the principles of fairness and transparency and should be repealed.

Approximately 80 percent of submitters agreed that the Immigration Act should be framework legislation, regulating the broader immigration system. Some submitters considered that the Immigration Act should require that immigration policy meet the principles of the legislation. Some submitters commented that the Immigration Act should require, or provide for, consultation on immigration policy.

Section 4: The Visa and Permit System

There was strong support for the use of the single term "visa" for all travel, entry and stay authorisation granted to non-citizens. Approximately 80 percent of organisations and 65 percent of individual submitters agreed with this proposal, noting that it would simplify the system and make it easier to understand. Submitters commented that the changes need to be well-communicated to stakeholders, including employers and staff in government departments that administer access to social services.

Approximately 75 percent of submitters considered that the system should continue to allow for exceptions to the standard requirement for authorisation to travel to, enter and remain in New Zealand. There were a range of views on which visa and permit exemptions should be maintained. Many submitters supported retention of visa-free arrangements, although airlines noted that they would not be opposed to all persons being required to hold a visa, and some submitters considered that there should be a review of the countries that have visa-free status.

A number of submitters expressed concern about the possible removal of exemptions for crew of sea-going vessels in order to deter asylum seekers. Submitters considered this would be contrary to the spirit of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees (the Refugee Convention). Concerns were also expressed that the Advance Passenger Processing system makes it difficult for genuine refugees to travel to New Zealand and that the use of such tools should be transparent and observe the principles of natural justice.

Airlines expressed concern about the possible removal of the exemption of commercial aircraft crew from completing arrival and departure cards. Others considered that all persons should be required to provide arrival and departure information.

Section 5: Decision-making

Approximately two thirds of submitters that addressed this issue considered that the power to make positive exceptions to residence policy should be delegated to selected senior immigration officials. Many submitters commented on the need for consistency, transparency and accountability of decision-making. Some submitters considered that these requirements could be met by requiring immigration officers to consider an exception to residence policy and to give reasons for decisions, and by making guidelines for decision-making publicly available. Those who oppose the proposal considered that only the Minister of Immigration should have the power to make exceptions to residence policy. Many submitters commented that, if the power is delegated, the Minister of Immigration should retain a residual discretion to make exceptions to policy.

Most submitters considered that decision-makers should provide potentially prejudicial information and reasons for decisions to both onshore and offshore applicants in the interests of fairness and natural justice. Likewise, most submitters considered that classified information should not be used to decline an application unless it is disclosed to the applicant and s/he is given an opportunity to comment on that information.

Approximately 75 percent of organisations and just over half the individual submitters expressed support for the legislation enabling decisions to be made electronically in the future. The main concerns were around ensuring that electronic decisions are limited to low-risk approval decisions that do not require an individual judgement to be made and putting in place adequate mechanisms to ensure transparency and accountability of decision-making. Approximately 15 percent of organisations and 35 percent of individual submitters were opposed to the proposal. Most of these submitters considered that an immigration officer needs to be involved in making the final decision.

There was a mixed response to the possibility of third party decision-making: organisations were evenly split between those who support and those who oppose making provision in the legislation for third parties to make some immigration decisions in the future; approximately 35 percent of individuals indicated support for this option and just over half expressed opposition. Business and employer representatives were among those who support the option but a number of industry groups also expressed reservations. The main concerns were around developing robust accreditation criteria and strict monitoring and audit requirements to ensure the accountability of third parties. Some submitters considered that the costs involved in developing these processes would outweigh any advantages of enabling third parties to make immigration decisions. Other submitters were strongly of the view that the decision-making role should be retained by the Minister of Immigration and delegated officials.

Section 6: Exclusion and Expulsion

Section 7: Access to Review and Appeal

Section 8: The Independent Appeal Bodies

Approximately 70 percent of organisations that responded to these proposals supported the establishment of a single immigration and refugee tribunal. Individuals expressed mixed views, with just under half indicating support for the proposal and approximately 40 percent indicating opposition. While submitters considered that a single tribunal would be more efficient, concerns were expressed about the potential for losing the expertise of the Refugee Status Appeals Authority and failing to recognise the special legal issues associated with refugee cases. Most of those who opposed the proposal considered that there should continue to be a separate refugee tribunal.

There were mixed views on whether appeals on the facts and humanitarian appeals for exclusion cases should be heard separately or together in exclusion cases.

Submitters made a range of comments on the legislative and administrative provisions that should be put in place for the independent appeals tribunal or tribunals. Most comment related to the proposed single immigration and refugee appeal tribunal. Submitters expressed mixed views on its membership, with some commenting that specialist and impartial expertise is necessary and others suggesting that a range of interests be represented. A number of submitters suggested that the tribunal have inquisitorial powers like the Refugee Status Appeals Authority and that applicants have the opportunity to be heard in person.

Some submitters commented on the need to ensure applicants have adequate time to make their appeal and/or that there be flexibility to allow for special cases. Adequate resourcing of the tribunal and timeliness of decision-making were emphasised by a number of submitters. Some submitters commented on legal aid, with a number suggesting that legal aid should be available for those making a humanitarian appeal.

There was strong support for the Ministry of Justice being responsible for servicing the immigration and refugee appeals bodies: almost 80 percent of submitters indicated support for this proposal. Submitters favoured a clear separation from the Department of Labour as initial decision-makers and commented that it would enhance public confidence in the independence and integrity of the appeals bodies.

Section 9: The Use of Classified Information

Submitters expressed mixed views to the proposals relating to the use of classified information. Many submitters indicated their support for all three proposals, with the strongest level of support for the use of classified security information in immigration decision-making (approximately 55 percent of those responding to this section). There was slightly less support for the use of other classified information in immigration decision-making (approximately half of all submitters). The response to the use of classified information in refugee/protection cases was more even, with approximately 45 percent indicating support and approximately 40 percent indicating opposition.

There were clear differences between individual responses and responses from organisations. Individuals were much more likely to support the proposals than oppose them. For all three questions, there were more organisations that opposed the use of classified information than supported it.

Those that support the proposals and those that oppose the proposals raised some similar concerns. Many submitters considered that decision-making and review processes need to be transparent, that applicants should have access to special counsel, that applicants should be provided with at least a summary of the information to enable them to challenge that information, and that reviews be undertaken by an independent body rather than by the Inspector-General of Intelligence and Security or a member of the proposed new immigration and refugee tribunal acting alone. Concerns were also expressed about the accuracy of classified information, particularly in the case of refugee/protection applications where the country from whom the applicant is seeking protection may be a source of classified information.

Many submitters indicated strong opposition to the proposals on the grounds that they contravene a person's right to a fair hearing and the principles of administrative and natural justice. These submitters were of the view that all prejudicial information should be fully disclosed to applicants if it is to be used in decision-making. While some submitters noted that the additional safeguards discussed above would help to alleviate their concerns, others were opposed to any use of classified information in immigration or refugee decision-making. A number of submitters questioned whether special counsel would be able to play an effective role because they would be unable to discuss the classified information with their client.

Section 10: Compliance and Enforcement

There was a reasonably high level of support for immigration officers having the power to require information to assist with investigations of people who may be liable for expulsion. Approximately 70 percent of submitters who responded to this issue indicated support for the proposal. Submitters considered that there should be strict controls on the use of the power, including clear definition of what information may be requested and under what circumstances, and provisions on the conduct of immigration officers. Submitters also commented that the power should be consistent with privacy and human rights legislation. Approximately 15 percent of submitters did not support the proposal, and commented that it is unnecessary or unwarranted.

Approximately 65 percent of submitters indicated support for extending the list of organisations that may be required to provide information to include broader industry groups. Many submitters agreed that health and education providers should not be included on the list. Some submitters made other suggestions about which groups should or should not be included on the list.

There was a mixed response to the proposal that immigration officers be able to detain people liable for detention for immigration purposes for up to four hours until the Police arrive. While approximately 70 percent of individual submitters expressed support for the proposal, only about half the organisations did; approximately 40 percent of organisations that made submissions on this issue were strongly opposed to immigration officers having a power to detain. Submitters commented on the need for specialist training in detention and attention to the rights of detainees, with many submitters expressing the view that the Police were best placed to undertake this role. Concerns were also expressed about the lack of an independent accountability mechanism, akin to the Police Complaints Authority, for dealing with complaints about the exercise of immigration powers. A number of submitters expressed concern about possible misuse of powers.

There was not a high level of support for immigration officers having the same powers of entry and search as Customs and Police have in the immigration context. Only 40 percent of submitters who addressed this issue supported the proposal. Many submitters considered that immigration officers should continue to work with the Police and Customs because these agencies have expertise in exercising powers of entry and search and there are mechanisms to ensure their accountability. Some submitters expressed concern that immigration officers may not use such powers fairly and that insufficient attention would be given to individual human rights. Submitters commented that in-depth training and comprehensive monitoring would be required if the proposal goes ahead.

Organisations that made submissions expressed strong support for the Minister of Immigration and delegated officials continuing to have the ability to grant permits to people in New Zealand unlawfully: approximately 90 percent agreed with the proposal. The response from individual submitters was mixed, with approximately 55 percent indicating support and approximately 40 percent indicating opposition to the proposal. Submitters who oppose the proposal considered that once a person is determined to be in New Zealand unlawfully, they should be required to leave regardless of the circumstances.

There was very strong support for the introduction of permit extensions for people whose permits expire while their application for a further permit is being considered: approximately 90 percent of submitters indicated support for this proposal. Submitters noted benefits for applicants and for employers.

Section 11: The Use of Biometrics

Approximately 60 percent of submitters who commented on this section agreed that immigration officers should be able to require, use and store certain types of biometric information and request the voluntary provision of other types of biometric information. Approximately 20 percent of submitters did not indicate a clear preference for or against the proposal but commented on the legislative provisions that would need to be in place.

Submitters commented that the legislation should lay out the broad principles for the use of biometric information, with the detail of particular technologies included in regulations, and that the use of biometric information should be consistent with internationally-agreed standards and with New Zealand's privacy and human rights legislation. Submitters commented on the need for adequate safeguards to be put in place, and some submitters expressed the view that a detailed privacy impact assessment should be undertaken.

The main concerns were with the proposed power to request the voluntary provision of biometric information such as DNA testing. Some submitters considered that this would be intrusive and expressed concern that people would feel compelled to provide the information to avoid a negative inference being drawn by immigration officers. Some submitters opposed this part of the proposal while others commented on the safeguards that should be put in place.

Section 12: Detention

Submitter response to the proposals to extend detention periods was mixed. These proposals included:

• extending the initial detention period without a warrant of commitment to a maximum of 96 hours in expulsion cases
• giving the judge discretion to extend the period for review of a warrant of commitment to a maximum of 28 days, and
• enabling the maximum detention period to be extended to up to six months where administrative delays outside the control of the Department of Labour prevent earlier removal.

In all three cases, approximately 40 to 45 percent of submitters indicated support for the proposals and between 35 and 45 percent were opposed. Submitters commented that these proposals could constitute arbitrary detention and that administrative convenience is an insufficient ground for infringing the detainee's human rights. Many submitters expressed the view that detention should always be for the minimum period possible and that detainees should have early access to the courts, and regular review, to assess the continuing need for their detention. Submitters also commented that detainees should have access to legal representation.

Approximately 60 percent of submitters agreed that the court should be able to waive the requirement to renew a warrant of commitment to detain a person who has been refused entry to New Zealand and is serving a prison sentence for criminal behaviour. Some submitters commented that the requirement should only be waived while the person is in prison, with a review taking place before the person is released.

There was a mixed response from submitters to the proposal that refugee status claimants who are high-risk may be detained, regardless of when they made their claim for refugee status: organisations were fairly evenly divided between those who support and those who oppose the proposal; approximately two thirds of the individual submitters expressed support for the proposal and approximately 20 percent were opposed. The main concerns were that the proposal could be contrary to the Refugee Convention requirement that detention only be undertaken when necessary and that it could constitute arbitrary detention. A number of submitters commented that detention needs to be consistent with the guidelines of the United Nations High Commissioner for Refugees. Some submitters commented that, in line with the Refugee Convention, refugees should not be punished for the use of false documents. Others commented on the need for clear and robust information on the reasons for detention in any given case.

Most submitters agreed that people detained for immigration purposes should not be detained alongside remand prisoners and convicted criminals. Approximately 55 percent of submitters considered that immigration officers should be able to undertake secure detention. However, a number of submitters considered that this power should not be vested in immigration officers given the specific training requirements for this role. Other submitters expressed concern that the proposal could lead to increased use of detention.

Section 14: New Zealand's Role as an International Citizen

Submitters expressed strong support for the proposal that new immigration legislation include New Zealand's international commitments to protect persons facing torture, arbitrary deprivation of life, or cruel, inhuman or degrading treatment or punishment. Approximately 85 percent of submitters that addressed this issue indicated support for the proposal. Some submitters considered that other human rights instruments should also be included in the legislation, including the United Nations Convention on the Rights of the Child and the International Covenant on Civil and Political Rights (ICCPR).

There was also a high level of support for determining claims under the Refugee Convention, the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention Against Torture) and articles 6 and 7 of the ICCPR in a single procedure, with a single right of appeal. Approximately 80 percent of organisations and 70 percent of individual submitters agreed with this proposal. Submitters emphasised the need for people seeking protection to have the same rights and procedural protections as refugee status claimants currently have, and for protected persons to have the same immigration status. Submitters also commented that refugee status/protection officers and members of the appeals tribunal would require additional training to ensure they are well-versed in all of New Zealand's international obligations.

Approximately 85 percent of organisations that made submissions agreed that immigration legislation should recognise refugees selected offshore. Approximately half the individual submitters supported the proposal and just over a quarter were opposed. The reasons for their opposition were not clear but appeared to relate to a concern about extending protection to a further group of people.

Submitters expressed mixed views on the proposed obligations of refugee status/protection claimants and the proposed offences for failing to meet these obligations. Many submitters considered that claimants should not be prosecuted for providing false documents or for failing to provide information. Submitters considered that the prospect of having a claim declined should be incentive enough for people to provide information.

Approximately 75 percent of organisations and 60 percent of individual submitters considered that subsequent claims should be allowed on the basis of a change in personal circumstances, with a number of submitters commenting that to not do so would breach New Zealand's obligations under the Refugee Convention. Approximately 70 percent of organisations and 85 percent of individual submitters agreed that there is no need for legislative change to deal with manifestly unfounded claims, persons coming from or via "safe countries" or mass arrivals. Submitters considered that the merits of each claim need to be considered on a case-by-case basis in order to protect individual human rights.

Individual submitters expressed strong support for clarifying when refugees or persons in need of international protection may be expelled: almost 90 percent of those who addressed this issue agreed with the proposal. Of the organisations that responded, approximately 60 percent agreed, 10 percent disagreed and 30 percent either were unsure or did not express a clear preference either way. The main concerns were around ensuring that the legislative provisions and language are consistent with the Refugee Convention, the Convention Against Torture and articles 6 and 7 of the ICCPR.

There was a reasonably high level of support for New Zealand becoming party to the 1954 Convention Relating to the Status of Stateless Persons (the Stateless Persons Convention). Approximately 75 percent of organisations and 65 percent of individual submitters expressed support for this option.

Section 15: Other Issues

Some submitters proposed that an Immigration Commissioner be established to oversee the exercise of powers by immigration officers. Such a commissioner would fulfil a similar role to other specialist statutory commissioners, and would focus on removal and detention issues, complaints of misconduct or unfairness against departmental officers and others exercising delegated powers, and other urgent issues for which no immediate remedy exists.

A number of submitters proposed that volunteering be excluded from the definition of employment in immigration legislation so that organisations with volunteers do not find themselves unexpectedly regarded as employers under the 1987 Act.

Some submitters suggested that consideration be given to the government agency that is responsible for the administration of immigration legislation. One submitter suggested that the family, humanitarian and refugee aspects of immigration policy be transferred to another agency such as the Ministry of Justice. Another suggested that responsibility for all immigration policy be shifted to an agency with a stronger focus on maximising the benefits of immigration.

Many submitters took the opportunity to comment on specific aspects of immigration policy. Over 3,500 individuals signed submissions seeking greater access to New Zealand for Pacific peoples. Comments were also made on the processing of immigration applications by immigration officers and the need for greater attention to various settlement and post-migration issues.

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