Exclusion

There was a mixed response from organisations to the proposal that failure to meet health and character requirements be included as grounds for exclusion in the new legislation: just under half agreed and approximately 40 percent disagreed with the proposal. Almost 70 percent of individual submitters expressed support for the proposal. The main concerns, from both submitters who support the proposal and submitters who oppose the proposal, were that the proposal could unfairly exclude families because of ill-health or disability of one family member, or may prevent the entry of refugees and their family members. Some submitters expressed concern that the proposed inclusion of a health ground may discriminate against persons with disabilities. Submitters considered that provision for waiving the health and character grounds needs to be included in the legislation, with some submitters suggesting that a specific exemption be made for refugees.

Submitters also considered that character requirements need to be well-defined. Some submitters expressed concern that the inclusion of a ground relating to "glorification of terrorism" may conflict with the right to freedom of expression, and suggested that any such provision be consistent with the Terrorism Suppression Act 2002. Concerns were also expressed about the use of classified security information and the possible exclusion of a person who poses a risk to New Zealand's reputation. A number of submitters considered that health and character requirements should remain in immigration policy.

Expulsion

There was a mixed response to the proposed extension of automatic liability for expulsion from unlawful stay in New Zealand to all grounds for expulsion. Those who support the proposal commented on the need to take decisive action and avoid lengthy delays. Those who oppose the proposal did not support placing the onus of rebutting liability for expulsion on individuals. Submitters expressed concern that people may not have sufficient time or information to mount an effective challenge and considered that the proposal would adversely affect vulnerable groups such as refugees and trafficked persons. A number of submitters commented on the need for people to be provided with notice of their liability for expulsion and to be given an opportunity to respond. Some submitters also expressed concern that the proposal would lower the status of permanent residence and could send a destabilising message to migrant communities.

Of those who responded to the proposed use of the single term "expulsion", approximately 55 precent agreed that this would help to create more understandable legislation, although some submitters preferred the use of the term "deportation". Approximately a quarter of submitters considered that a distinction should be maintained in the terms used to describe expulsion of temporary entrants and expulsion of residents.

There was a mixed response to the Minister of Immigration having a reduced role in expulsion decisions. Some submitters considered that Ministerial decision-making is not required, although many submitters expressed the view that Ministerial oversight of decision-making is essential and the Minister should retain the ability to intervene. Other submitters considered that the Minister should continue to have a decision-making role because migrant communities have greater confidence in decisions made by the Minister and the Minister is accountable to the people.

Submitters expressed strong support for differentiated penalties following expulsion. Some submitters suggested amendments to the proposed ban periods on returning to New Zealand. A number of submitters commented on the need for flexibility when imposing a ban period and some submitters expressed the view that a person should not be automatically excluded from re-entry on character grounds once the ban period has expired.

Summary of proposal

The discussion paper proposes that the existing legislative grounds for refusing entry in section 7 of the 1987 Act be strengthened by the inclusion of health and character requirements. Generic statements such as "must be of acceptable standard of health and good character" would be included in the legislation, and would be supported by further detail in policy. There would be provision for the Minister of Immigration (or a delegated official) to make exceptions.

Submitter response

One hundred and twenty one submitters commented on the grounds for exclusion. These included 62 submitters commenting on behalf of organisations and 59 private individuals. Organisations that made submissions on this issue included immigration consultants, refugee and migrant groups, ethnic councils, human rights groups, community law societies, law societies, other community groups, businesses, unions, industry representatives, government agencies and the United Nations High Commissioner for Refugees.

There was a difference in response between organisations and individuals. The response from organisations was mixed, with just under half the organisations that addressed this issue indicating support for the proposal and approximately 40 percent indicating opposition. Of the individual submitters that addressed this issue, almost 70 percent agreed that health and character grounds for exclusion should be included in legislation and approximately 20 percent disagreed.

Comments of submitters who support the proposal

A number of submitters who support the inclusion of health and character grounds for exclusion in the legislation commented on the need to protect New Zealand and New Zealanders from potential health or character risks, or to minimise the cost to the taxpayer.

This would be supported by carriers. Both health and character are factors which impact on fellow travellers and crew. (Board of Airline Representatives New Zealand)

Ex-overseas criminals, potential terrorists, non-refugees jumping the queue, diseased and those likely to require NZ taxpayers to support them should be excluded from entry and immediately despatched back to their last point of origin. (Individual submitter)

Some submitters expressed the view that placing health and character grounds in the legislation would give the requirements more importance. One submitter commented that it would flag all possible grounds for exclusion.

Some submitters commented that the grounds need to be well-defined in the legislation, including the use of the phrase "acceptable standard of health and good character". Other submitters were of the view that only character requirements should be detailed in the legislation so that people would be able to determine whether any convictions would exclude them from entry. They considered that a generic statement would be appropriate for health grounds for exclusion, with detailed requirements set out in policy.

Some submitters expressed qualified support for the proposal. A number of submitters expressed the view that provision for waiving the health and character grounds should be included in the legislation. Submitters made particular reference to the need to ensure that the requirements do not prevent refugees from entering New Zealand and noted that the requirements need to be consistent with New Zealand's international obligations. Some submitters commented on the need for the legislation to enable broader humanitarian circumstances to be taken into account, such as family wellbeing.

The caveat I would have to this issue is where there are overwhelming family well-being or humanitarian (other than refugee) concerns that warrant this exclusion to be overridden. (Individual submitter)

A number of submitters expressed reservations about the inclusion of health grounds in the legislation. Submitters considered that care needed to be taken not to discriminate against people with disabilities and to recognise that those with health problems may still contribute to New Zealand. Some submitters considered that only those with serious communicable diseases should be excluded. Other submitters considered that the use of health insurance would provide an acceptable alternative in some cases, although one submitter commented on the practical difficulties in ensuring that the insurance was not cancelled after arrival in New Zealand.

Some submitters raised concerns with the existing grounds for exclusion set out in section 7 of the 1987 Act. One suggested that people should not be excluded on the basis of convictions for offences that would not be considered a crime in New Zealand. Another noted that people sentenced to a suspended term of imprisonment of 12 months or more would be excluded on the basis of section 7(1)(b) and commented that, in many cases, these sentences were used as a deterrent rather than as a reflection of serious offending (before being abolished by the Sentencing Act 2000). The submitter commented that the intention of section 7 is to exclude those convicted of serious offending and suggested there be discretion to look into the cases of persons who received suspended sentences, but were never imprisoned.

The New Zealand Law Society commented that the legislation also needs to set out the circumstances in which a person who is inadmissible on character grounds may become eligible for a visa or permit. The Society suggested a provision similar to the Canadian legislation, which enables entry after a certain period of time.

Provision of a "prescribed period of ineligibility" and the creation of "prescribed classes" of persons who will be deemed to have been rehabilitated is a sensible option. Applicants should be given the benefit of New Zealand's "Clean Slate" legislation. (New Zealand Law Society)

Some submitters considered that people should be able to appeal exclusion on health or character grounds.

Comments of submitters who oppose the proposal

Most submitters who oppose the proposal expressed concern that it is inconsistent with New Zealand's international obligations and/or domestic human rights legislation. Submitters were particularly concerned with the proposed inclusion of health grounds in the legislation. They considered that it is unfair to exclude a family based on the health status of one family member and commented that this could constitute discrimination on the basis of disability. Many comments reflected the submission of the Human Rights Commission.

The intention to include requirements permitting exclusion if a person is not of an "acceptable standard of health" in legislation is concerning - particularly if this means a family is refused entry because of the health status of a child or dependent family member. Although the proposal contemplates exceptions to the exclusion rule, there is no guarantee that a person with a disability who meets all the other requirements for entry will be permitted to enter the country. This may constitute indirect discrimination on the ground of disability and contravene both Art.2 ICCPR and s.19 NZBORA. (Human Rights Commission)

A number of submitters commented that a person with a medical condition may be able to make a significant contribution to New Zealand that outweighs any medical costs and/or that they may be able to cover these costs themselves. Submitters also commented that it should not be assumed that a person with disabilities is of ill-health or that they are unable to contribute to New Zealand. These submitters argued that a more robust assessment of individual cases is required.

In the case of health, there needs to be provision for discretion on humanitarian grounds for considering long term benefit. For example, in the case of a family wishing to migrate with a disabled child. Not all health conditions are disabling - and many people with disabilities can and do make considerable contributions to the community and to society. (Wellington Chinese Association)

Those who have health issues including those who are disabled should not be automatically excluded. There should an ability to take out private health insurance or a bond to cover all cost so as to ensure no burden on the public health system. (Refugee and Immigration Committee, Wellington District Law Society)

DPA recommends that the concept of cost-benefit needs to be more adequately reframed to recognise that upfront costs may well represent an investment in future contribution. (DPA)

Some submitters commented that a clear distinction needs to be made between health and character grounds to reflect the different nature of the grounds and ensure that there is no question of a person of ill-health or with disabilities being assumed to be of poor character.

A number of submitters commented that the character grounds for exclusion need to be transparent and clearly defined in the legislation. Many submitters expressed particular concern with the possibility of including "glorification of terrorism" among the character grounds for exclusion on the basis that it could undermine the right to freedom of expression. As with concerns on the proposed health requirement, comments tended to reflect the submission of the Human Rights Commission.

While there are genuine reasons for excluding people who support terrorism, doing so because of "glorification" of terrorism raises issues of freedom of expression in terms of Art.19 ICCPR and s.14 NZBORA. The use of "glorification" has been controversial in the UK (where it originates) and the provisions should be modified to align them with the wording in the Terrorism Suppression Act 2002. (Human Rights Commission)

Some submitters expressed concern that people could be excluded on the basis of classified security information because of the lack of access to that information. One submitter also raised concerns with the possible exclusion of a person who could pose a risk to New Zealand's international reputation. A participant at a public stakeholder meeting commented that a person could be excluded if they have been imprisoned for political or other crimes that may not constitute a crime in New Zealand.

Of particular concern is elevating any character requirements to the level of exclusion on the basis of classified security information. Applicants would truly be "fighting windmills" in these circumstances. (Wellington Community Law Centre)

While the Foundation would support the exclusion of someone who has committed a war crime, a crime against humanity or gross human rights abuses, the description "risk to New Zealand's reputation" is too vague and open to abuse. The basis for exclusion should be limited to the examples given. (Human Rights Foundation)

Some submitters made particular reference to refugees and expressed concern that the proposal would prevent the entry of refugees and/or their family members through family reunification policies. A number of submitters commented that the legislation should include a specific exemption for refugees.

We do not support the inclusion of health and character grounds for exclusion in legislation, but wish to see them remain in policy where there is more scope for discretion. However, if included in legislation, we wish to see a specific exemption to allow New Zealand to continue to accept refugees with health needs. Our concern is particularly for those who have suffered injury or trauma as a result of the experience which led them to become refugees and cannot receive adequate medical treatment without resettlement to a third country. (Caritas Aotearoa New Zealand)

The United Nations High Commissioner for Refugees noted that Article 1F of the Refugee Convention provides the sole basis for the exclusion of refugees. It commented that "health and character are not grounds for exclusion contemplated within the framework of Article 1F, as they do not constitute heinous criminal acts, or crimes."

Some submitters were of the view that the proposal is unnecessary because there are already sufficient health and character requirements in immigration policy. Some submitters commented that including these requirements in legislation does not fit with the proposal that the legislation be framework legislation. One submitter expressed concern that the inclusion of health and character grounds in legislation would give the impression that additional requirements were being imposed and deter international students from coming to New Zealand.

The inclusion of health requirements in legislation may unnecessarily create the perception of an additional barrier to study in New Zealand without demonstrable benefit. (New Zealand Vice Chancellors' Committee)

Some submitters commented that including the requirements in legislation would increase the onus on applicants to make their case for an exception. These submitters generally considered that retaining the requirements in immigration policy would provide more room for discretion. However, one submitter suggested that, where a requirement involves human rights, it should be in regulations and thus subject to parliamentary scrutiny.

Summary of proposals

The discussion paper proposes establishing a single provision clearly setting out the grounds for expelling a non-citizen from New Zealand, along with a single term - "expulsion" - which would apply to temporary and residence permit holders. A non-citizen would become automatically liable for expulsion if they met any one of the grounds for expulsion.

Under the proposal, the existing initial step of permit revocation would be removed, with permits being automatically revoked on departure once all avenues of review and appeal have been exhausted. (Options for review or appeal of expulsion decisions are discussed in section 7.)

The discussion paper indicates that there would not be any requirement for the Minister of Immigration to be involved in expulsion cases but s/he would retain the ability to intervene. The discussion paper suggests that it could be appropriate for the Minister of Immigration to retain involvement in cases involving threats to national security.

Submitter response

Ninety five submitters responded to one or more of these questions: 47 submitters responded on behalf of an organisation and 48 submitters responded as private individuals. Organisations that made submissions included immigration consultants, ethnic councils, refugee and migrant groups, law societies, community law centres, human rights groups, other community groups, businesses, the United Nations High Commissioner for Refugees, one political party and a government agency.

Comments on question one

There was a mixed response to this question. Approximately a third of the organisations and 55 percent of individual submitters indicated support for extending automatic liability for expulsion to all grounds for expulsion. Conversely, approximately a half of the organisations and approximately 30 percent of individual submitters were opposed to the proposal.

Most submitters who support the proposal did not elaborate on their views. Those who did generally commented on the need to take decisive action and prevent long delays in removing people from New Zealand.

The suggested "expulsion" grounds and processes set out between paragraphs 289 and 302 are pragmatic and sensible. The current confused situation in New Zealand and most other countries is a significant impediment to public confidence and often requires significant judicial time and effort to resolve. I consider the approach suggested will be welcomed by the judiciary. The current debacle in the UK following the long-term failure to deport aliens who are convicted criminals is a classic example of the problems that result from a failure to deal with all the issues in the one Court at the same time. (Individual submitter)

Submitters who oppose the proposal expressed concern that automatic liability for expulsion would not allow individual circumstances to be taken into account before the appropriateness of expulsion is determined. Concern was also expressed that people would not have adequate time to prepare their case. Many submitters commented that placing the onus of rebutting liability for expulsion on individuals would adversely affect vulnerable groups such as refugees and trafficked persons who may not be in a position to effectively challenge the decision.

We would not support the automatic expulsion of a refugee for fraud or misrepresentation, if this related to the circumstances of their becoming a refugee (for example, use of a false travel document because it was not safe to seek a genuine document). The situation of refugees is complex, and community accusations of fraud are reasonably common and not easily rebutted in circumstances where documentary evidence can be impossible to obtain. (Caritas Aotearoa New Zealand)

The United Nations High Commissioner for Refugees noted that the expulsion of refugees is governed by Articles 32 and 33(2) of the Refugee Convention. This issue is discussed further in section 14.3.

A number of submitters commented that people should be provided with notice of their possible expulsion and be given an opportunity to seek review of a decision in the interests of fairness and natural justice. Submitters made particular reference to the need for individuals to know about, and be able to challenge, any expulsion based on administrative findings; for example, a finding that a permit was obtained by fraud or misrepresentation or that permit conditions had been breached. Concern was also expressed that the proposed "national security" ground was too vague and open to abuse. One submitter emphasised the need for people to have access to legal advice.

The notification to a person who prima facie is in the country legally, that they are considered to be liable for expulsion, is an important procedural safeguard of immigrants' legitimate interests in a fair process. Automatic liability is undesirable also because it would give rise to punitive measures such as detention without warrant. (Immigration and Refugee Law Committee, Auckland District Law Society)

For reasons of fairness and natural justice and in the absence of legal aid or other meaningful access to legal advice and advocacy, we do not support the proposal (at paragraph 295) to reverse the onus on rebutting the presumption of expulsion onto the person themselves. This centre has acted for vulnerable people in situations of domestic violence and other abuse where the Department has incomplete knowledge of the facts, provides no access to counsel upon arrest and pushes through a rapid removal process, typically over the weekend when lawyers are not available, without the opportunity for the person in question to obtain information needed to support their claims. It is the safeguards, not the Department's powers which need to be strengthened in these situations. (Hutt Valley Community Law Centre)

A number of submitters expressed concern that the proposal would lower the status of permanent residence, by treating residents in the same way as temporary entrants and overstayers. Some submitters commented that this would send a destabilising message to settled migrant communities.

As the review paper rightly suggests in other areas, people present in NZ have differing levels of interests of remaining in NZ, and this should be reflected in any expulsion mechanism. Conflating these does not indicate fairness as the review claims; administrative convenience seems to take priority over fairness. The review paper seeks to assure readers that well-founded divisions in circumstances will be taken into account, but this simply begs the question as to why these divisions should be collapsed into one administrative category. The Review does not adequately justify the necessity or fairness of this option. This option potentially reduces the sense of security of permanent residents, which plays an important role in maintaining family stability and harmony. (Wellington Community Law Centre)

A number of submitters commented that there should be flexibility to issue a permit in cases where a person has a good case to stay and/or has work skills that are valuable to the New Zealand community.

Comments on question two

Approximately 55 percent of submitters that responded to this question agreed that the single term "expulsion" would help to create more understandable legislation. A further five percent were of the view that the term "deportation" would be preferable. These submitters commented that deportation is more commonly used and internationally understood.

A single word would be more helpful however the proposed new word should be "deportation" as people in the community frequently refer to "removal" as deportation when these two words have different implications. Deportation is the preferred word and most commonly used. (Grey Lynn Neighbourhood Law Office)

Approximately a quarter of submitters that responded to this question did not support the proposal. Most of these submitters considered that a distinction should be maintained between the expulsion of residents and the expulsion of temporary entrants. Some submitters expressed the concern that using the term expulsion to cover all circumstances could adversely affect people when seeking to enter another country.

A distinction between removing a person in New Zealand unlawfully or following the revocation of a temporary permit on the one hand and removing a person who has held a residence permit on the other hand should be maintained. Loss of a permanent right to reside should be recognised as more serious than loss of a temporary right. Grouping all removals and deportations under the term "exclusion" might blur the distinction and that is not desirable. (New Zealand Association for Migration and Investment)

It seems that the efficiency that may be gained by replacing all the different terms relating to differing types of removal with 'expulsion' may result in unfairness. While New Zealand officials will understand the different nuances of removal, using 'expulsion' may be confusing for overseas immigration authorities. This means that people who overstay for a brief period of time may be treated in the same way as people who seriously violate New Zealand immigration law. This is unfair, and may have unpleasant repercussions for undeserving people. Due to these reasons, the all-encompassing term 'expulsion' should not be used. (Individual submitter)

One submitter suggested using the term "administrative removal" instead of removal alone in order to make the difference between removal for staying after the expiry of a permit and expulsion for criminal offending and other serious matters clearer.

Comments on question three

Responses to this question were mixed: approximately 45 percent of submitters agreed that a reduced role for the Minister would be appropriate in expulsion decisions, approximately 40 percent disagreed and the remaining 15 percent either were unsure or did not indicate a clear view either way.

Some submitters who agreed with the proposal commented that there is no need for the Minister to be involved in expulsion cases. However, many submitters considered that the Minister should still be able to intervene and that ministerial oversight is necessary, along with robust review and appeal rights.

In only exceptional cases should he be approached. He is a very busy person with other portfolios to manage without his office being used as a further delaying tactic. He is there to serve us, not every newcomer who will use every trick to stay. (Individual submitter)

The Committee agrees that the Minister's role in decision-making could be reduced, subject to appeal rights being maintained. It is important that in addition to the Minister's continued ability to intervene in this process there must be a robust avenue of review. (Immigration and Refugee Law Committee, Auckland District Law Society)

Submitters who oppose the proposal considered it essential that the Minister act as the final arbiter on expulsion decisions. A number of submitters commented on the role of the Minister as the representative of the people and the greater confidence that migrant communities have in decisions made by the Minister. Many submitters also made reference to the Minister being accountable for decisions.

The safeguard of Ministerial discretion is no safeguard for the individual if there is no right of appeal to the Minister. This means that a case deserving discretionary intervention only will come to notice through a 'trial by media' requiring political response, which runs counter to the principles of administrative fairness and equal access to appeal for individuals. (Individual submitter)

There are many complex and varied situations leading to expulsion. The Minister of Immigration's input into the decision will help to ensure the case is treated fairly. The Minister of Immigration is also accountable for this decision, which is extremely important. (Global Immigration Group)

Whilst TANI understands that the Minister would prefer to reduce workload in this regard, TANI believes that it is imperative that the Minister remains engaged in such actions due to the significant consequences of expulsions. TANI believes that reducing the role of the Minister would reduce the confidence of Asian communities in the process of adjudicating expulsions. (The Asian Network Inc)

One submitter commented that providing for an immigration commissioner would reduce the workload of the Minister. Submitters' proposal for an immigration commissioner is discussed further in section 15.

Summary of proposal

The discussion paper proposes a new system of differentiated bans that would align with the grounds for expulsion and apply penalties that vary in proportion to the seriousness of the wrong-doing:

No ban

• Voluntary departure after any period of unlawful stay in New Zealand.

Two-year ban

• Expulsion after staying in New Zealand unlawfully for one year or less, for the first time.

Five-year ban

• Expulsion after staying in New Zealand unlawfully for one year or less, on a second or subsequent occasion.
• Expulsion after staying in New Zealand unlawfully for longer than one year.
• Expulsion on the basis of not meeting temporary or residence permit conditions.

Permanent ban

• Expulsion on the basis of criminal offending, permit or identity fraud, or being a security threat.

Submitter response

Sixty seven submitters responded to this question: 33 submitters responded on behalf of organisations and 44 submitters responded as private individuals. Organisations that made submissions included immigration consultants, ethnic councils, refugee and migrant groups, law societies, community law centres, businesses and other community groups.

There was strong support for differentiated penalties following expulsion, with approximately 85 percent of submitters indicating agreement with the proposal. Only around five percent of submitters indicated that they did not agree with the proposal as outlined.

Some submitters suggested some amendments to the proposed differentiated bans. One submitter was strongly of the view that there should be some ban period for those who leave New Zealand voluntarily so as to deter people from overstaying for a number of years before finally leaving voluntarily. The submitter considered that a ban period should apply to those who have been in New Zealand unlawfully for 28 days or more, and should be for a lesser period than for those who are expelled from New Zealand.

Some submitters questioned whether failure to meet permit conditions warrants a five-year ban in all cases. One submitter suggested that this could be unduly harsh and affect employers in the case of work permit holders. The submitter gave the example of a work permit holder moving to a new role within an organisation.

It is very rare for an employee to remain in the same role, with no promotion, for a full three year period (which could be the validity of the work permit). Under the proposed penalty regime this worker would be subject to a five year ban from returning to NZ and the employer left to fill a role that presumably has been vacated by a very capable and knowledgeable person. (Fragomen New Zealand)

One submitter suggested that a three-year ban would be more humane, other than for those who have been repeatedly expelled from New Zealand. Another submitter considered that it does not make sense to treat overstayers who have spent one or two days longer in New Zealand differently from other overstayers. This submitter suggested instead applying a minimum ban period such as one year, and adding on a period of time in proportion to the length of time overstayed (for example five times the number of days spent unlawfully in New Zealand).

Some submitters made general comments that the penalties should be more severe, particularly for those convicted of a crime in New Zealand. One submitter, on the other hand, commented that penalties should not be increased and that the least possible penalty should be imposed. One submitter expressed the view that failed refugee claimants should not be penalised for entering New Zealand if they firmly believed that they were genuine refugees. Some submitters suggested fines for overstaying or a prohibition on further sponsorship as additional or alternative penalties.

A number of submitters commented on the need for flexibility and provision for consideration of mitigating circumstances before imposing a ban period. One submitter suggested that if the Minister delegated this power to officials, there would need to be a right to seek review of the decision, and legal aid. Another submitter proposed that an immigration commissioner be able to refer cases to the proposed new immigration and refugee appeals tribunal to consider a reduction in the ban period. One submitter suggested that the expulsion be discussed with approved community groups before penalties are imposed. Another commented on the need for a transparent and consistent approach to dealing with partners of New Zealand citizens and residents to enable them to return earlier.

A number of submitters commented on the longer term consequences of being expelled from New Zealand. These submitters considered that a person should not be automatically excluded from re-entering New Zealand on the basis of character once the ban period has expired.

In order for there to be a real incentive for people to depart voluntarily, there should be reciprocal provisions relating to re-entry. That is, a presumption in law that a period of illegal stay will not act as a bar to re-entry beyond the period of time prescribed by law. (New Zealand Law Society)