REGULATORY IMPACT STATEMENT IMMIGRATION ACT: COMPLIANCE AND ENFORCEMENT

Transcription

1 REGULATORY IMPACT STATEMENT IMMIGRATION ACT: COMPLIANCE AND ENFORCEMENT Statement of the Public Policy Objective To ensure immigration legislation creates sufficient and appropriate powers to allow the Department to monitor and enforce compliance with immigration obligations. Statement of Feasible Options Access to address information Policy Problem and Magnitude: The Department of Labour (the Department) has difficulty locating the approximately 20,000 people unlawfully present in New Zealand (overstayers) as the current ability to obtain address information is limited and out of date. Also, it cannot be used to locate other people engaged in the immigration system where this is required, for example to determine liability for removal or deportation. Status Quo: The Department can require the provision of address information from companies specified in Schedule One of the Immigration Act 1987 (the 1987 Act) in relation to overstayers. This includes from New Zealand Post, Telecom, Power Supply authorities, local authorities, energy companies, and Clear Communications along with Housing New Zealand and the Ministry of Social Development. Preferred Option: The Department can require the provision of address information from a wider group of companies (specified through a list of industry groups) in relation to a wider group or people, who are, or who may be liable for deportation. Proposed industry groups include some education providers and government agencies, postal and courier companies, telecommunications providers, finance and banking providers, local and regional government, insurance providers, utility providers, employers (in relation to an employee who is being located only), and real estate agencies. Net Benefit of the Proposal: The proposal will benefit government by increasing the potential pool of address information from which people can be located, increasing the chances of locating people. Increasing the number of businesses from which this information can be required will benefit businesses by allowing the Department to reduce the burden of supplying information by ensuring that requests are fairly distributed (whilst taking into account reliability and quantity of information). Costs to business are expected to be negligible per request. However costs for an organisation would rise if large numbers of requests were regularly made of that organisation. The proposal is a minimal intrusion into privacy of non citizens as the information being required is limited and essential to maintaining the integrity of the immigration process. Information will be held securely and only required and accessed by appropriately trained and designated officers. 1

2 Powers of Entry and Search Policy Problem and Magnitude: In some circumstances immigration staff, responsible for delivering immigration outcomes, are prevented from exercising the entry and search powers needed to deliver those outcomes. Enforced reliance on police or customs officers to exercise powers can lead to inefficiencies, compromised delivery of immigration outcomes and/or failure to deliver immigration outcomes. Status Quo: Both immigration and police officers may serve a removal or deportation order. Only police officers may enter a building or premises in order to do so. Police officers and customs officers (undertaking an immigration function) have powers of entry to border areas to locate and detain people unlawfully present, ineligible to enter New Zealand, refused entry to New Zealand, or who are or may be committing immigration offences. Preferred Option: Powers of entry and search contained within the 1987 Act be carried over into the Bill as powers designated by the Chief Executive of the Department. This would remove reference from the legislation to particular officers or agencies being able to exercise these powers and instead allow these powers to be designated to officers with appropriate training and experience. This aligns with proposals in Chapter Three: Decision making. As a safeguard in exercising potentially intrusive powers of entry and search it is also proposed that this provision come into force through Order in Council. Net Benefit of the Proposal: Having the ability to designate immigration officers alongside officers from other agencies would allow for the Department to deliver the outcomes required of it. The proposal would also allow the Department to work alongside other agencies where their special skills were required. This would improve the efficiency of the use of resources and provide for agencies to work together to provide a whole of government approach to managing the various border risks. The use of immigration officers to serve deportation orders creates a much better opportunity to provide those non citizens being served with information and advice about the process they are about to, or may, undergo and their options and implications. The reduced appearance of criminality and improved ability to provide information may assist in obtaining the agreement of overstayers to voluntarily depart New Zealand. Powers of Entry and inspection Status Quo, Policy Problem and Magnitude: The 1987 Act allows immigration officers to enter employers premises to inspect and copy time and wage information about an employee suspected of being here unlawfully, or who may be working contrary to their permit conditions. No warrant is required in order to exercise this power. The existing power restricts the ability of immigration officers to inspect and copy other information held by an employer (such as a letter offering the job, or an employment agreement). This information may establish whether an individual is complying with permit conditions. 2

3 There is no power in the 1987 Act to allow immigration officers to enter and inspect records held by an education provider to determine whether that organisation is meeting its immigration obligations. There is also no provision for immigration officers to inspect information establishing a student s compliance with immigration obligations. Immigration officers have a power of entry and inspection of accommodation providers records when locating overstayers. No warrant is required to exercise this power. Preferred option: That the Bill establishes a power for designated immigration officers to enter buildings and premises to inspect and copy information held: 1. by an accommodation provider to assist in locating people unlawfully present in New Zealand 2. by an employer about an individual who is suspected of being unlawfully present in New Zealand or who may not be entitled to undertake that employment (including time and wage records as well as any documents held that record remuneration or employment conditions of an employee being investigated) 3. by an education provider that establishes a student s compliance with visa conditions, and 4. by an employer or education provider that is relevant to an investigation into their compliance with any immigration obligations they may have. As a safeguard in exercising these powers of entry and inspection it is proposed that they come into force through Order in Council. Net Benefit of the Proposal: These proposals would enable the Department to locate overstayers and ensure that education providers, employers and noncitizens are fulfilling their immigration obligations. These proposals would contribute to the integrity of the immigration system by ensuring that only those with entitlement to study or work did so. Entry and search of Immigration Control Areas and Craft Status Quo, Policy Problem and Magnitude: Immigration officers do not have a statutory power of entry to border areas and craft for the purpose of fulfilling ordinary immigration functions such as processing arriving passengers, interviewing passengers identified as inadmissible prior to their disembarkation from a craft, to view their seating or to identify those seated with them, attempting to locate passengers travel or identity documents, and facilitating the departure of people being removed, deported or turned around. This reduces the ability of the Department to deliver expected immigration outcomes particularly around the arrival and departure of people of interest (such as people who are inadmissible, make protection claims, or who are being deported from New Zealand). The possibility that immigration officers may be prevented access to these areas also reduces the opportunity for the Department to take part in a whole of government response to an issue involving immigration concerns. 3

4 Preferred Option: The proposal is to introduce a statutory right of access for designated officers and a power of entry to Immigration Control Areas and craft within those areas to undertake immigration duties and to search for travel and identity documentation. Net Benefit of the Proposal: The proposal will provide designated officers with the power to enter Immigration Control Areas and protect the right of those officers to perform their duties to deliver government outcomes. It will also provide opportunity to work with other government agencies in those areas. Power to require the provision of space at airports and exemption from charge for operational space Status Quo, Policy Problem and Magnitude: The Department, like other border agencies, must negotiate for operational space at airports. The Department also currently pays rent for the operational processing space it uses at airports. Other border agencies (New Zealand Customs Service and the Ministry of Agriculture and Forestry) have legislative provisions allowing them to: require the provision of space for the purpose of processing passengers, and use of the space provided for the purpose of processing of passengers without charge. [Withheld under the Official Information Act 1982] Preferred Option: That the Bill would provide a similar legislative footing for the Department as that provided for other border agencies. This would allow the Department to require the provision of space at the airport for the processing of passengers. It would also allow the Department to use operational space at the airport without charge. The exemption from charge would apply regardless of how the space was acquired (i.e. through negotiation or requirement). Net Benefit of the Proposal: The Department, and other border agencies, provide an essential, non commercial service without which some airports would not be able to function as international airports. The ability to require the provision of space has never been used by government agencies, however it is acknowledged as being a useful backstop should the situation require its use in the future and during negotiations for space requirements. There would be a cost to airport companies that currently charge rent for the space used by the Department in the form of forgone revenue. [Withheld under the Official Information Act 1982] Confirmation of evidence in proceedings provision Status Quo, Policy Problem and Magnitude: The 1987 Act enables an immigration officer to provide a statement of certain matters to a court. This statement is able to be rebutted in court by the defendant. In the absence of proof to the contrary, the statement will be deemed to be proof of the matter. This mechanism is required because some facts cannot be proved in the normal way in Court. 4

5 In reviewing the legislation a number of additional facts have been identified which would appropriately be dealt with through this mechanism. Preferred Option: The proposal is that the existing mechanism would be continued with the addition of the following facts able to be established in court: 1. certification of an individual s fingerprints obtained under a particular name in a particular country 2. certification that a person has or has not been granted any particular immigration status (including any particular type of visa or permit, refugee or protection status, permanent residence, and/or citizenship) under a particular name in a particular country 3. certification that a person has been deported from another country (New Zealand is already covered) 4. certification that a person has or has not been issued a passport, certificate of identity, or other document under a particular name in a particular country 5. certification that a person has or has not been convicted, charged, and/or is under investigation under a particular name in a particular country 6. certification that a person has or has not been awarded a particular qualification under a particular name in a particular country 7. certification that a person was or was not employed in a particular position (by a particular employer) under a particular name in a particular country, and 8. certification that a certain document/application was received by an immigration officer on a certain date. Net Benefit of the Proposal: The Department would be relieved of the high burden of establishing these facts in court. The onus would be placed on the individual concerned. Statement of Consultation Undertaken Stakeholder Consultation: The main concern expressed about access to address information was the need to adhere to human rights and privacy obligations. Submitters opposed to the granting of entry and search powers to immigration officers considered that officers should continue to work with Police and Customs because these agencies have expertise 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. Power to require the provision of space at airports and exemption from charge for operational space was not discussed in the public discussion paper. Airport companies have been notified of proposals. Regional international airports expressed concern about the possibility that this proposal precedes an increased demand for space, possibly duplicating space already provided to Customs to perform immigration duties. Airport companies also pointed out that border agencies are charged for administrative support areas. 5

6 Government Departments/Agencies Consultation: Customs expressed concern about the possibility of duplication of resources and training especially in relation to powers of entry and search. These concerns have been addressed. Business Compliance Cost Statement Access to address information Businesses that are required to provide address information will not be required to collect or store any information for this purpose. There will likely be some minor costs for businesses to access their information records and to communicate the result to the Department. It is estimated that the time to look up a customer record on an electronic customer database and confirm identity would be less than five minutes per person. The Department currently locates approximately 2500 people per annum. The number of queries per annum that this number is derived from is not known. It is expected that this number of queries will not rise significantly, but the number of successful results would rise. Powers of entry and inspection Businesses will be required to provide immigration officers records related to their own and/or an employee s compliance with immigration obligations or conditions of entry and stay in New Zealand. The cost of providing this information for an immigration officer to inspect will vary considerably depending on the ability to access and the method of storage of records. 6