Summary of proposals

The discussion paper proposes that immigration officers have the power to require address information, or information on non-compliance with visa conditions, to locate and investigate people who may be liable for expulsion because they:

• have stayed in New Zealand beyond the expiry of their permit
• are breaching permit conditions (such as working on a visitor permit), or
• may have obtained their refugee status or permit through fraud or misrepresentation.

The discussion paper also proposes that the organisations that may be asked to provide this information be specified as industry groups rather than as companies (for example "telecommunications providers" rather than Telecom) and that additional industry groups be listed such as "finance and banking providers" and "insurance providers".

Submitter response

Ninety four submitters responded to one or both of these questions: 51 submitters responded on behalf of organisations and 43 submitters responded as private individuals. Organisations that made submissions included immigration consultants, refugee and migrant groups, ethnic councils, human rights groups, community law centres, law societies, businesses, industry representatives, government agencies and one political party.

Comments on question one

Approximately 70 percent of submitters that addressed this question agreed that immigration officers should be able to require information to assist with the sorts of investigations outlined above.

Many submitters expressed qualified support for the proposal. They considered that there should be strict controls on the use of the proposed power including:

• a requirement that there be reasonable grounds for the investigation
• a clear definition of the information that may be requested
• provisions on how the power may be exercised by immigration officers
• provision for a code of conduct (similar to the Social Security Act 1964)
• a statement on how long the information may be retained
• reference to the Privacy Act, and/or
• consistency with the New Zealand Bill or Rights Act 1990.

Some submitters commented that comprehensive training of immigration officers would be required to ensure the power is exercised appropriately.

The NZAMI supports this proposal but only if strict controls are imposed and officers receive far more comprehensive training in this area than is presently the case. Exercise of these powers must be done in a manner that complies with human rights norms and privacy legislation. (New Zealand Association for Migration and Investment)

As in existing legislation, the information that can be requested should be clearly prescribed. (Churches' Agency on Social Issues)

Some submitters proposed that an immigration commissioner be appointed to oversee the exercise of powers by immigration officers. This proposal is discussed further in section 15.

A number of submitters did not express a clear preference for or against the proposed power to require information. These submitters also emphasised the need for strict controls on the use of any such power and consistency with privacy and human rights legislation. One submitter considered that there should be a strengthened right for migrants to respond to any potentially prejudicial information. Another commented that the accountability of immigration officers should be increased to match the increased accountability of immigration consultants.

Approximately 15 percent of submitters did not support the proposal. A number of submitters considered that it is not necessary to extend immigration officers' powers to require information. One submitter expressed concern that the proposal could decrease the ability of organisations to obtain information from individuals due to reduced trust. Another submitter expressed the view that it should be necessary for visitors and students to sign a declaration permitting Immigration New Zealand to solicit information from other organisations.

This sounds more like Big Brother and an unnecessary expansion of bureaucracy. And adds to the lack of natural justice. Most people involved with immigrants are usually willing to help without extra laws to enforce it. (New Zealand Burma Support Group)

Some submitters commented that they oppose any further increase in the powers of immigration officers in the absence of rigorous judicial safeguards. They did not elaborate on what these safeguards should be. Other submitters expressed the view that information should only be required after a District Court judge has considered whether the information is needed.

Comments on question two

Approximately 65 percent of submitters agreed that the list of organisations that may be required to provide information should be extended to broader industry groups. Support for the proposal was slightly higher from individual submitters at almost 75 percent. Approximately 20 percent of all submitters did not support the proposal, and approximately 15 percent either were unsure or did not indicate a clear view either way.

One submitter commented that careful consideration should to given to which industry groups are included on the list and that further consultation with these industries would be necessary. Another considered that the Privacy Commissioner should undertake a privacy impact assessment before extending the list to include further industry groups or organisations.

Many submitters agreed that health and education providers should not be among the organisations that could be required to provide information because of the risk that people would deprive themselves and their children of health and education services. However, one submitter commented that further consideration should be given to the inclusion of education providers because of the need to obtain as much information as possible on international students suspected of not fulfilling their immigration responsibilities. Another submitter commented that the proposal should not preclude health providers sharing information if they choose to (for example, if they consider a person has provided false medical tests).

Some submitters suggested some additional organisations or industries be added to the list in Schedule One of the 1987 Act, including:

• the Ministry of Justice (including the courts) and the Department of Corrections
• the farming sector and the taxi and prostitution industries with respect to employment, and
• finance, banking and insurance providers, including companies that provide finance for car purchases.
• Some submitters considered that some organisations should be excluded from the list:
• immigration consultants, lawyers, representatives and agents, and
• community organisations.

Some submitters expressed the view that the Department of Labour already has sufficient access to employer records. Local Government New Zealand noted that local authorities are already included in Schedule One but do not need to be because information on names and addresses they hold can be obtained through rating databases as a matter of public record.

A submitter who did not support the proposal commented that organisations should be defined rather than specified as broad industry groups, and that this information should be gazetted and made available through public notices. Another submitter considered that the current list of organisations is sufficient.

The organisations already listed are extensive. Most immigrants, for example, receive mail via New Zealand Post. In addition, the Department of Labour can obtain information from employers as quite a number of people who are in New Zealand unlawfully are working. It is difficult to see how including insurance companies in organisations that the Immigration Service can obtain information from can make any difference in locating people who are here unlawfully. (Immigration Committee, Tongan community)

Summary of proposal

The discussion paper proposes that, in cases where it has been determined that a person needs to be detained for immigration purposes, certain immigration officers and customs officers have the power to detain the person until the Police can arrive, for a maximum of four hours. The discussion paper indicates that only delegated officers with appropriate training would be able to exercise the power and that procedural guidelines would establish the situations in which the power could be used.

Submitter response

One hundred submitters responded to this question: 56 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, human rights groups, law societies, community law centres, other community groups, businesses, airline representatives, the Police, a territorial authority, the Ombudsmen and one political party.

There was a difference in response from organisations and individuals. The response from organisations was mixed: of the organisations that addressed this issue, approximately half supported immigration officers having a limited power of detention and approximately 40 percent opposed the proposal. Approximately 70 percent of individual submitters indicated support for the proposal and approximately 25 percent were opposed.

Some submitters considered that providing delegated immigration and customs officers with the power to detain people liable for detention for immigration purposes for up to four hours until the Police arrive would assist in dealing with immigration breaches or security risks.

Airlines support this change as being another link in the chain of efficient handling of breaches and suspected breaches. (Board of Airline Representatives New Zealand)

With hugely increased security risks, this is essential. This is also important in portraying New Zealand as a much stronger hand in security matters. (Individual submitter)

Many submitters who support the proposal expressed qualified support, commenting that:

• the power should only be used in exceptional circumstances and where there are sufficient grounds to warrant detention
• the power should only be used within defined areas such as airports and ports
• immigration and customs officers should receive appropriate training to the same standard as the Police
• the safeguards considered in the discussion paper need to be in place, and/or
• there should be sanctions for any misuse of powers.

NCWNZ understands that there are times when Immigration Officers need the power to detain people in the absence of the police. We would see this clause being used only in exceptional circumstances and that it is used only when there are 'reasonable grounds' and when the health and safety aspects were in place. We agree that special training need to be given to those empowered to detain. (National Council of Women New Zealand)

Submitters who oppose the proposal raised similar issues about the need for specialist training and appropriate safeguards. However, they were strongly of the view that immigration and customs officers should not have the power to detain a person under any circumstances. Many submitters commented that the Police have substantial training and expertise in exercising powers of detention and are accountable for their actions to the Police Complaints Authority. One submitter commented that immigration officers do not command the same trust as police officers, especially in migrant communities.

Detention should be the preserve of police officers - who are trained to do this task and are subject to statute and independent regulation (by the Police Complaints Authority). (Individual submitter)

There is no basis for allowing any personnel other than the Police to exercise these powers and doing so would undermine the safeguards required for a fair and transparent system. (New Zealand Law Society)

A number of submitters considered that the discussion paper had not made a compelling case for change and that a shortage of police officers was insufficient grounds for giving a power of detention to immigration officers. Some submitters suggested that it would be preferable to deal with this issue administratively.

The grounds given for this (Paragraphs 653-656) are based on expediency and are not compelling. They certainly do not reflect the seriousness of extending to a wider group of officials powers to interfere with the fundamental liberties of the person. (Human Rights Foundation)

It seems far more appropriate to invest in better coordination between immigration officers and the police so the police do their job effectively, rather than training another tier of immigration officials to carry out police work. (Individual submitter)

Many submitters commented on the potential for misuse of powers. A number of submitters considered that monitoring systems would need to be put in place to ensure that powers are being used appropriately. Submitters suggested a number of possible safeguards including:

• the right to appeal or seek review of a decision to detain
• access to counsel and legal aid
• supervision of the exercise of powers by an independent commissioner, and/or
• monitoring by the Human Rights Commission.

A number of submitters also commented on the need for comprehensive training, including training on the New Zealand Bill of Rights Act and the principle of natural justice.

If there is to be such a power, there should be access to a lawyer. People should have the right to have access to a lawyer without delay and in private. This should funded by the Government and an appropriate list of lawyers should be available. This consistent with section 23 of the New Zealand Bill of Rights Act. (Grey Lynn Neighbourhood Law Office)

The Committee also wishes to emphasise generally that appeal rights (including habeas corpus) must be available and explained to a person in a language that they fully understand. (Immigration and Refugee Law Committee, Auckland District Law Society)

If new powers are conferred on immigration officers, an independent review and hearings panel needs to be established to ensure accountability and transparency in the use of these powers. (Auckland City Council)

In the event that this does go ahead, there must be strict training requirements for all officers and they must be instructed in their obligations and responsibilities under the Bill of Rights. Such measures should be used sparingly and only as a very last resort. (Global Immigration Group)

Some submitters, on the other hand, commented that the additional resources required to given effect to the various monitoring and training requirements would mean that the use of immigration officers would not be a cost-effective option.

Other comments made by submitters were that four hours is too long a period for detention by immigration officers and that adequate facilities would need to be provided. The Ombudsmen noted that the proposal could increase the number of complaints they receive, which would have resource implications for the Department and the Ombudsmen's office.

Summary of proposal

The discussion paper proposes that immigration officers be able to exercise the powers of entry and search currently available to Police and Customs in carrying out specific immigration duties, which would enable them to:

• enter and search premises to serve a removal order, or
• enter and search aircraft or ships to detect an immigration offence or prevent it being committed.

The discussion paper indicates that, in both circumstances, the immigration officer would need reasonable grounds for exercising the power.

Submitter response

Ninety five submitters responded to this question: 55 submitters responded on behalf of organisations and 40 submitters responded as private individuals. Organisations that made submissions included immigration consultants, ethnic councils, refugee and migrant groups, human rights groups, law societies, community law centres, other community groups, businesses, airline representatives, an employers association, the Police, the Ombudsmen and one political party.

There was not a high level of support for this proposal. Overall, approximately 40 percent of submitters agreed that immigration officers should have the same powers of entry and search that Police and Customs have in an immigration context, and just over half disagreed. There was a difference in response between individuals and organisations: the response from individuals was split fairly evenly between those who favour the proposal and those who do not; approximately 35 percent of organisations indicated support for the proposal and just over half were opposed.

Submitters who support the proposal generally did not elaborate on their views. A number of submitters expressed qualified support, commenting on the need for adequate safeguards such as guidelines, training and sanctions for any misuse of powers.

Submitters who oppose the proposal raised similar concerns as were expressed in relation to the proposed limited power to detain. 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. A number of submitters expressed concern that immigration officers may not use such powers fairly and that insufficient attention would be given to individual human rights. Some submitters commented that the proposal is unnecessary and any issues can be dealt with administratively.

There is a need to maintain constraints on these powers and it is both unnecessary and inappropriate for immigration officers to be making decisions and exercising these powers. There is a concern that even in terms of the status quo, there is inadequate protection of civil liberties and immigrants' human rights. There is currently no authority able urgently to investigate detention, entry and search, revocation of temporary permits and other complaints. (New Zealand Law Society)

TANI does not believe that this is warranted and is concerned about the abuse of such powers. Furthermore, TANI feels that immigration officers do not command the same trust that police officers do, especially in migrant communities. If any such delegation is enacted, it is important that the use of such powers is stringently monitored to ensure that particular communities are not unfairly targeted. (The Asian Network Inc)

The only reasons advanced in support of giving immigration officers powers of entry and search seem to be based upon the possibility of inefficiencies existing in the current system, which are better resolved by enhanced coordination and cooperation between government agencies. (Waitakere Community Law Service)

One submitter raised concerns about the possible health and safety implications for employers if immigration officers were to become injured while pursuing a person in a place of work. The submitter also commented that the Police and Customs are easily recognisable because they wear a uniform, unlike immigration officers, who should be required to produce verifiable identification before attempting to enter any place of work.

Some submitters considered that any powers of entry and search should be restricted to certain places. One submitter considered that immigration officers should not have the power to enter and search a place of work without being accompanied by a uniformed member of the Police or Customs, or having a warrant from the court. Another submitter suggested that there should be similar restrictions on private homes.

We submit that should Option B proceed for 10.1.3, that the power of immigration officers to enter and search premises should be limited to ships, aircraft, and ports of embarkation and disembarkation. Should immigration officers wish to enter places of work or dwelling houses they should have present a uniformed member of Police or Customs. Alternatively, they should obtain a warrant issued by a judge or appropriate court official to enter and search a place of work. (Refugee and Immigration Committee, Wellington District Law Society)

As with the proposed limited power to detain, some submitters commented that in-depth training and comprehensive monitoring would be required and that resources would need to be made available to support this. A number of submitters commented that the exercise of powers would need to be consistent with the New Zealand Bill of Rights Act. The Ombudsmen noted the possible resource implications if the proposal were to lead to an increase in complaints to the Ombudsmen.

One submitter suggested that officers should be familiar with other languages and cultures to enable clear and appropriate explanation of what is happening and why.

Summary of proposals

The discussion paper proposes retaining the discretionary ability to grant a permit to any person unlawfully in New Zealand on a case-by-case basis.

The discussion paper also proposes that provision be made for permits to be extended in situations where a person lodges an application for a further permit before the expiry of their current permit. The extension would last until the date that the new application is decided.

Submitter response

Ninety one submitters responded to one or both of these questions: 52 submitters responded on behalf of an organisation and 39 submitters responded as private individuals. Organisations that made submissions included immigration consultants, ethnic councils, refugee and migrant groups, law societies, community law centres, businesses, business and employer representatives, government agencies and one political party.

Comments on question one

There was a difference in response from organisations and individuals to this question. Organisations 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, with approximately 90 percent of organisations indicating agreement to the proposal. The response from individual submitters was mixed, with approximately 55 percent indicating support for the proposal and approximately 40 percent indicating opposition.

Submitters who support the proposal noted that there are a wide range of circumstances in which a person may be in New Zealand unlawfully and commented that it is desirable to consider the grant of a permit on a case-by-case basis. Some submitters commented that people may be in New Zealand unlawfully for genuine reasons or for circumstances beyond their control. A number of submitters considered that many of these people have the potential to benefit New Zealand and it is therefore in New Zealand's interests to allow them to stay.

There are a wide range of reasons why people become unlawful in New Zealand and/or cannot return to their countries of origin and many of these people have the potential to benefit New Zealand. It is therefore is entirely appropriate for the Minister of Immigration and delegated officials to have the discretion to deal with people unlawfully in New Zealand on a case by case basis. (Waitakere Community Law Service)

Our members have extensive experience of these powers being utilised to expedite humane and common-sense decisions for those who, for example, inadvertently overstay. Retaining this part of the system is practical and desirable. (New Zealand Association for Migration and Investment)

Some submitters considered that there should be checks and balances on the use of a discretionary power to ensure that it is being used fairly and appropriately. One submitter commented that whilst the decision to grant a permit should remain a matter of discretion, some policy guidelines would be useful to indicate the circumstances under which the power is to be exercised.

The discretionary power to the delegated officers should be monitored so that they are not being misused or biased towards any particular group or communities. (Bangladesh New Zealand Friendship Society Inc)

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.

People who are overstaying are illegal immigrants and should be removed end of story. We need to get away from the soft touch of nice people in the immigration department overriding the system. (Individual submitter)

I don't forget to pay the electricity or phone bill. With something as important as Immigration permits, a bad memory is no excuse. (Individual submitter)

Comments on question two

Approximately 90 percent of submitters who addressed this question indicated their support for the introduction of permit extensions for people whose permits expire while their application for a further permit is being considered. A number of submitters commented that the proposal would remove a source of stress for applicants by ensuring that applicants do not become "unlawful" due to delays in application processing times.

This will remove a very real source of unnecessary stress and expense for migrants and should reduce the workload of visa officers who are currently having to consider repeated temporary permit applications whilst residence applications are under process. (Access Immigration New Zealand Ltd)

If Immigration cannot make a decision before the applicants existing permit expires, it would be harsh and unfair for the applicant, at his/her own cost to leave the country and then have to come back again once immigration has made a decision. (Individual submitter)

Submitters also noted that the proposal would have flow-on benefits for applicants by ensuring that they retain rights of review and appeal and are not disadvantaged in any future application for citizenship.

A number of submitters commented that the proposal would provide greater certainty to employers as well as permit holders. Some submitters commented that employers are often reluctant to employ migrants whose work permits are about to expire as they do not want to breach the 1987 Act. Another noted that many employers have people in New Zealand on specific projects, which are often extended at short notice, and it can be difficult for them to get new work permits arranged in sufficient time.

Currently, many employers are uneasy about continuing to employ people whose temporary work permits have or are about to have expired and who are awaiting the issue of a further permit as they do not wish to breach the provisions of the Immigration Act 1987. Anecdotally, some employers terminate the employment of such employees and rehire them if and when a further permit is eventually issued. This practice can cause disruption to business as well as uncertainty. (Employers and Manufacturers Association (Central) Inc)

Some submitters expressed the view that permit extensions should be available to everyone rather than discretionary. One submitter considered that permit extensions should be automatic so time is not spent processing permit extension applications, thus further delaying the processing of the substantive permit application. Another submitter commented that high-risk applications could be prioritised by the Department of Labour.

Some submitters suggested that people should only benefit from permit extensions if applications for a further permit are made within a prescribed period of time. One submitter suggested applications should be lodged at least 30 days before the temporary permit is due to expire. Another submitter commented that concerns about frivolous applications could be addressed by requiring that the application for a further permit has met all the lodgement criteria.

If an applicant has what appears to be a genuine job offer, medicals and police clearances (or evidence of having applied for the police clearances some time ago) or in the case of a student, tuition fees fully paid, it is unlikely that the applicant has gone to those lengths if they are only needing to buy themselves some time. (Fragomen New Zealand)

The few submitters who opposed the introduction of permit extensions did not elaborate on their views.