Enables classified security information (CI) to be considered in immigration decision-making by the Director of Security when issuing a security risk certificate (SRC) where there are security, terrorism or public order issues^[6].

CI will be used in immigration and protection decision-making where there is national or international security, criminal conduct or significant international reputation issues.

The new legislation provides for broader use of classified information in the immigration system than Part 4A.

CI can be used in cases where there is criminal conduct or significant international reputation issues for New Zealand as well as security (including public order) issues.

The Minister of Immigration (Minister) may make a preliminary decision to rely upon SRC.

CI can be used by the Minister to make an immigration decision, or by a specially designated and security-cleared determination officer to make a protection decision.

The new legislation enables CI to be accessed for both immigration and protection decision-making.

The Minister will make an immigration decision, and a determination officer will make a protection determination.

Where a preliminary decision to rely on a SRC is made, all immigration decision-making ceases. Processing of refugee status matters continues but the CI cannot be used.

CI will inform BOTH immigration and protection decision-making and the information will be protected.

Under the new legislation a single immigration or protection decision is made while Part 4A requires separate immigration and protection decision-making.

New Zealand Police (Police) serve notice of the SRC to the subject.

There is no legislative requirement for reasons to be given for the issue of the SRC or a summary of the CI used to be released (but the courts have ordered it in Mr Zaoui's case).

The decision-maker will advise the non-citizen that a decision has been made using CI and give broad reasons for the decision.

A summary of the CI will be released where possible.

The new legislation will provide a more transparent process than Part 4A, but still enable protection of the CI.

Reasons for the use of CI will be given and a summary of the information will be released where possible.

Automatic, secure detention is required for a non-citizen who is the subject of a SRC.

Secure detention available to manage the risk of those non-citizens liable for monitoring and detention (including those refused entry and liable for deportation).

The new legislation provides greater flexibility than Part 4A for an appropriate response, depending on the CI and level of risk.

Secure detention is an option, considering the circumstances of the case, the level of risk the non-citizen represents, and the need to ensure compliance with immigration law.

The Inspector-General of Intelligence and Security (Inspector-General) assesses whether the SRC was properly made.

The non-citizen could appeal to the Tribunal where they would usually have access to appeal.

There are appropriate safeguards under the new legislation to assess the use of CI. The appeal process is closely prescribed enabling faster decision-making. A non-citizen being deported by Order in Council would not have access to the Tribunal (but could seek judicial review).

The Inspector-General would consider if the CI:

• is CI
• is credible information, and
• was used appropriately to determine whether the non-citizen met the relevant security criteria.

In considering the immigration or protection appeal the Tribunal would assess whether the CI:

• is CI
• is relevant to the decision
• is credible information, and
• whether, overall, the decision had integrity.

Under the new legislation, the Tribunal would provide an assessment of the CI in the immigration context, while Part 4A enables only a separate assessment of the CI.

The Tribunal would consider the use and veracity of any CI used in the context of an immigration or protection decision.

There is no legislative requirement for a special advocate to be provided to the subject of a SRC. In the Zaoui case, the Inspector-General has determined, however, that he can authorise the use of a special advocate (outside the legislation).

A non-citizen will have access to a special advocate during any Tribunal or court appeal and during warrant of commitment (warrant) hearings considering the need for monitoring or detention.

The new legislation would clearly prescribe the role of the special advocate, whereas Part 4A is silent on this matter.

Appeals on points of law and judicial review are available in respect of the Inspector-General's review but there are no legislative provisions guiding the use and protection of the CI at that level.

Appeals on points of law and judicial review are available with closely and clearly prescribed legislative provisions guiding the process

Unlike Part 4A, the new legislation would clearly prescribe the process for using CI in court appeals while protecting the rights of the individual and protecting the information.

Guidance will be provided on the urgency of considering an appeal where CI has been used.

Review and appeal by appeals authorities and/or appeals on points of law and judicial review are available in respect of any immigration or refugee status determination where processing is recommenced.

The review and appeals process is streamlined as noted above.

The new legislation therefore provides a faster process than Part 4A with fewer avenues for appeal and subsequent delay.

The NZSIS, as owner of the classified security information, faces argument about its status in the review and appeals process because the legislation is silent on the matter.

The agency which owns the CI can be party to any review or appeal where the information is considered.

Unlike Part 4A, the new legislation would enable the agency to be party to proceedings, providing advice on the use and veracity of the CI in the review and appeals process.