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Regulatory Impact Statement – Immigration Act: Deportation

Statement of the Public Policy Objective

To develop a transparent, efficient and fair deportation framework that clearly sets out a non-citizen’s rights and obligations.

Statement of Feasible Options

How deportation liability is triggered and how it can be cancelled

Status quo, Policy Problem and Magnitude: The Immigration Act 1987 (the 1987 Act) makes non-citizens who have overstayed liable for removal (unless they appeal within 42 days of the expiry of their permit). No administrative or court action is required to make them liable. In contrast, other deportation processes require a ministerial order to initiate, for example in cases of residents who are criminal offenders.

The requirement for ministerial involvement in deportation may not be necessary where the grounds for deportation liability were clear in the statute and where appeals were available. Requiring all decisions to be taken at the ministerial level creates delays.

Preferred Option: Non-citizens would be liable for deportation when they come within criteria specified in the legislation. There would be a delegable ministerial power to intervene to cancel deportation liability, but the Minister of Immigration (Minister) or delegated officer would not be compelled to consider or make any such cancellation.

Net Benefit of the Proposal: The proposal improves the deportation framework by removing the compulsion for ministerial involvement in deportation decisions. It reduces the chances for delay arising from challenges to the initial decision to make a non-citizen liable for deportation. The retention of the ability of the Minister to intervene provides an opportunity for deserving cases to be taken out of the deportation process and would reinforce confidence in the system.

Greater clarity in the deportation framework would make it clearer to non-citizens when they would be liable for deportation. It provides non-citizens a clear pathway to a single independent appeal (where appropriate).

Status of non-citizens during deportation process

Status quo, Policy Problem and Magnitude: The 1987 Act provides for residents to retain their status until they are finally required to leave New Zealand after deportation or revocation proceedings. Temporary entrants may have their permits revoked, and become unlawful for the duration of any appeals pending deportation.

Preferred Option: It is proposed that non-citizens should maintain lawful status while in the deportation process, except for those who are liable for deportation because their visas have expired. Non-citizens who held a valid temporary entrant visa when deportation liability was triggered would be able to apply for further visas of the same type in order to maintain their lawful status during any appeal.

Net Benefit of the Proposal: This proposal allows non-citizens to retain their current status until deportation is confirmed. If deportation is not confirmed, the non-citizen’s life will not have been disrupted more than is necessary.

Deportation liability criteria:
Unlawful presence in New Zealand

Status quo, Policy Problem and Magnitude: Ascertaining an applicant’s true identity is a necessary foundation of the assessment of immigration applications. Where a completely or partly fabricated identity is used to successfully gain a visa, the 1987 Act provides for this to be dealt with as fraud, with the visa subject to revocation. This means that non-citizens who should never have obtained a visa are accorded a greater opportunity to appeal against deportation than overstayers.

Preferred Option: Visas granted to a completely or partly fabricated identity would be treated as though they had never been granted. The non-citizen would be given 14 days period from the service of a deportation liability notice to demonstrate that the false identity was, in fact, genuine. If the use of a false identity is confirmed, the non-citizen would be deemed to have been unlawfully in New Zealand from the date a visa was first granted to the false identity. For temporary entrants, the 42 day period to lodge a humanitarian appeal with the tribunal will have passed in many cases. The purported holders of resident or permanent resident visas would be able to appeal to the tribunal on the facts.

Net Benefit of the Proposal: The proposal means that non-citizens who gain a visa (through the use of a false identity) do not gain an advantage in the appeals process. The proposal still allows for ministerial intervention to grant a new visa in all cases.

Threat or risk to national or international security

Status quo, Policy Problem and Magnitude: The 1987 Act provides for deportation, by Order in Council, for non-citizens who are a threat to national security. The 1987 Act also provides for the deportation, by ministerial order, of suspected terrorists threatening New Zealand. There is no clear rationale for having distinct processes for those who threaten security and those who are terrorists. Also, the interpretation of “threat” may not include where a non-citizen is an integral part of a wider or international threat. These deportation provisions are used infrequently, but have been used this year.

Preferred Option: It is proposed that non-citizens who are determined to be a threat or a risk to national or international security could be deported by Order in Council made by the Governor-General.

Net Benefit of the Proposal: The preferred option is a strong power. It simplifies the system by having only one decision making process. The broadening of “threat to national security” to include “risk” would enhance the government’s ability to respond to future security threats. Where deportation is an option, the proposal makes it clear that the provision can be applied to those who pose no direct and immediate threat of harm, but are an integral part of a wider or international threat. The addition of the international dimension enhances New Zealand’s response to threats to other states.

Character

Status quo, Policy Problem and Magnitude: A resident may be deported where there is clear evidence of immigration fraud, or where the person commits a serious criminal offence after the grant of residence. From time to time investigations relating to criminal activities the non-citizen was involved in prior to residence being granted commence after the grant of residence. Unless the non-citizen was under investigation at the time of their application, and they knew this, there would have been no fraud committed. There are currently no immigration consequences in such cases.

Preferred Option: Residents would be liable for deportation, within five years of residence being granted, where new information, applicable at the time residence was granted, indicates that the person would not have been granted residence if that information been available at that time.

Net Benefit of the Proposal: Government and New Zealand society would benefit by being able to deport non-citizens who committed serious criminal offences where this information was not known at the time of the application, and where extradition was not being sought by the home country. There would be a cost to a small number of non-citizens who would not have been granted residence if particular information had been available at the time residence was granted, who face no immigration consequences under the 1987 Act but who may be deported under this proposal.

Where a person who lost New Zealand citizenship and reverted to resident status was liable for deportation as a resident

Status quo, Policy Problem and Magnitude: The situation of people who lose citizenship varies according to whether they have retained residence status while they have been New Zealand citizens. Where residence has been retained and there are grounds to revoke it, a full revocation process must be completed, including a re-examination of the facts that lead to the loss of citizenship. Where the former citizen has not retained residence, they are likely to be in New Zealand unlawfully and subject to removal. This inconsistency is unfair and somewhat arbitrary.

Preferred Option: It is proposed that New Zealand citizens would not hold visas, but that when citizenship is lost the person would be deemed to hold a resident visa. If the factual basis for the loss of citizenship arose from circumstances that were in themselves deportation liability criteria, then liability would be triggered. An appeal would be available on humanitarian grounds, but not on the facts, which were reviewable during the citizenship deprivation or renunciation process. The Minister could intervene to cancel liability at any time. If the loss of citizenship did not involve facts that were grounds for deportation liability, then no action would be taken.

Net Benefit of the Proposal: This proposal clarifies the immigration status of the relatively few people who lose New Zealand citizenship each year. It allows them to remain in New Zealand as residents unless they are liable for deportation. Even then, they may appeal the liability. The proposal also reinforces the integrity of New Zealand citizenship by allowing decisions on the loss of citizenship to be made on the basis of the criteria relevant to that situation with confidence that the grounds for subsequent immigration action are clear.

Offences warranting deportation

Status quo, Policy Problem and Magnitude: The 1987 Act allows for the deportation of residents who have been convicted of offences of degrees of seriousness. Both actual and possible sentences are used. The seriousness of the offences that warrant deportation is stepped within two, five and ten year periods from the grant of residence.

Period, from grant of residence, during which offence committed

Status quo

10 years

Actual sentence of 5 years or more, or indeterminate period capable of running for 5 years or more.

Conviction for exploiting or knowingly employing an unlawful worker.

5 years

Actual sentence of 12 months or more, or indeterminate period capable of running for 12 months or more.

Conviction for two offences punishable by imprisonment for 12 months or more for each.

2 years or at anytime while in New Zealand temporarily or unlawfully

Conviction punishable by imprisonment for 3 months or more.

The closer the offence to the grant of residence, the less serious the offence needs to be to warrant deportation. As the five and ten year steps are based on actual sentences, sentencing decisions have been based on keeping a person out of deportation liability, which undermines the current discretion of the Minister to decide deportation. The immigration offences of employing and/or exploiting illegal migrant workers are specified as applying during the full ten years.

Preferred Option: It is preferred to use only actual or potential sentences as a measure for deportation liability. It is proposed that residents be liable for deportation:

Net Benefit of the Proposal: The proposal will strengthen the government’s decision-making ability by allowing early intervention for offending at a time when the non-citizen’s links with New Zealand are likely to be still developing. Using a possible rather than actual sentence gives the specialist tribunal the sole role of assessing deportation appeals at this stage, rather than having these matters intrude into sentencing decisions in the courts. Longer term residents will benefit from the retention of the current provisions that would apply for the whole ten year period. Shorter term residents will face stronger incentive to maintain good behaviour.

How deportation liability is communicated

Status quo, Policy Problem and Magnitude: The 1987 Act requires residence deportation orders based on criminal offending to be made within six months of sentence or conviction. This means that otherwise liable non-citizens can escape deportation where inter-departmental information sharing falls down. This time limit is not consistent with the proposed system that makes non-citizens liable when they come within criteria specified in the Bill. As liability is triggered by the statute and not by order, the proposed deportation system needs to provide for communication of liability, in most cases.

Preferred Option: Non-citizens liable for deportation would be advised of their liability by the service of a deportation liability notice (except for, as with the status quo, overstayers and national security deportations). The notice would advise the non-citizen of their deportation liability, any appeal rights, and time limits, which would start with the service of the notice. Liability would endure for ten years regardless of when the notice was served.

Net Benefit of the Proposal: This proposal would ensure that a non-citizen liable for deportation would not escape the liability because of delays in serving liability notices, thereby ensuring the effectiveness of the deportation system. The rights of the non-citizen are protected because their appeal lodgement period starts only when they are notified of this by the deportation liability notice.

Ability to suspend deportation liability

Status quo, Policy Problem and Magnitude: The current system requires deportation to proceed or be cancelled. This reduces the ability of decision-makers to make responses that fit individual circumstances, with, for example, no middle path between the serious consequences of deportation and imposing no penalty at all.
Preferred Option: It is proposed to establish a delegable Ministerial power to suspend deportation liability of residents and permanent residents for up to five years (the tribunal would also have this power). The suspension would be subject to good behaviour or other conditions, with deportation liability reactivated where the conditions were not met and cancelled if they were. Non-citizens whose deportation liability had been suspended would be able to appeal their deportation liability to the tribunal. Citizenship or another visa type would not be able to be granted during the suspension period.

Net Benefit of the Proposal: The proposal would benefit some non-citizens who might otherwise be deported by giving them another chance to demonstrate good behaviour and their suitability to remain in New Zealand. The ability to appeal to the tribunal gives non-citizens the opportunity to seek to have their deportation liability cleared entirely if they consider that they have a strong case. The proposal gives the government flexibility in responding to individual circumstances. The ability to make common sense exceptions is important to maintaining confidence in a system that makes non-citizens liable for deportation by the operation of the law.

Penalties after deportation

Status quo, Policy Problem and Magnitude: Removed overstayers are banned for five years and deported former residents are banned permanently under the 1987 Act. These provisions provide a strong sanction against behaviour that warrants deportation and some incentive for non-citizens not to overstay. The single sanction available for overstayers does not provide for a graduated response to take account of varying circumstances. The ban regime has a weak spot in that attempts to re-enter during the five year ban to not carry any sanction.

Preferred Option: It is proposed that the bans applying to non-citizens deported after being in New Zealand unlawfully should be:

The Minister (and tribunal, when deciding appeals) could waive or reduce the period of the ban. In addition, it is proposed that any attempt to re-enter New Zealand during the ban period should restart the period from the date of attempted re-entry.

Net Benefit of the Proposal: This approach provides for a graduated response to overstaying, allowing individual circumstances to be taken into account. It may increase the incentives for early voluntary departures. Should a person who is banned arrive at the border and make a protection claim they would be refused entry pending the determination of their protection claim.

Statement of Consultation Undertaken

Stakeholder Consultation: Slightly more submissions supported the proposal for the provisions to trigger deportation liability than opposed. The main issues were concerns that appeal rights may be reduced, placing the burden of rebutting the deportation presumption on the non-citizens, that liability would need to be communicated, and that the Minister would no longer be required to make deportation decisions.

There was support at public meetings for the idea of maintaining lawful immigration status during the deportation process. Submissions on the national security deportation criterion considered it too vague and open to abuse, unless clearly defined and lacking a clear decision-making process. Little comment was received on the levels of offending that could trigger deportation liability for a resident. One submission argued that a high degree of transparency in criteria was required, and that, therefore, criteria should be outlined in legislation.

A number of submitters considered that non-citizens liable for deportation should be advised of this so that they could appeal. There was strong support for graduated bans on returning as a penalty after deportation.

Government Departments/Agencies Consultation: No significant concerns have been raised by other agencies consulted on these proposals.