REGULATORY IMPACT STATEMENT IMMIGRATION ACT: MONITORING AND DETENTION Statement of the Public Policy Objective To develop a modern monitoring and detention system that manages risk while ensuring the rights of the individual are balanced appropriately against the rights of New Zealand. Statement of Feasible Options Legal aid Policy Problem and Magnitude: Lack of access to legal aid may limit a noncitizen s access to legal representation during any period of immigration detention. Status Quo: Non citizens who are detained for immigration purposes do not have access to legal aid unless they are asylum seekers. Preferred Option: Non citizens who satisfy the eligibility criteria would have access to legal aid services during any period of immigration detention. The criteria include consideration of whether the detainee could afford a lawyer, and the circumstances of their case. Net Benefit of the Proposal: This proposal will ensure that those non citizens without alternative means of accessing representation can obtain regular legal assistance during any period they may be detained for immigration purposes. While this proposal may mean that the Department of Labour s (the Department) decision to seek detention for some non citizens will be subject to additional scrutiny, it will benefit the government through ensuring that the immigration monitoring and detention system complies with national and international human rights obligations. Monitoring Agreements Policy Problem and Magnitude: There is no legislative provision that enables a non citizen liable for deportation to be monitored for immigration purposes outside the court process while: they arrange their voluntary departure, or their asylum claim is determined. Status Quo: The Department makes informal agreements with non citizens who are liable for detention to monitor them while they arrange for their voluntary departure from New Zealand. Alternative Option: The Department is required to seek a Warrant of Commitment (warrant) to detain all non citizens who are liable for detention prior to their release on conditions, open detention at Mangere Accommodation facility (for asylum claimants) or in secure detention in Police or Corrections facilities. 1
Preferred Option: That the Bill enable the Department to seek agreement from a non citizen who is liable for detention that they: report to the Department at set periods of time reside in an agreed and specified location, or provide a guarantor responsible for: o ensuring compliance with conditions of monitoring, and o reporting including any failure to meet those conditions. Where agreement cannot be reached, a non citizen who was liable for detention could be arrested and detained if required. This may result in a warrant hearing where they may be released on conditions by the courts, or securely detained. Net Benefit of the Proposal: The use of monitoring agreements could benefit non citizens who were liable for detention and require some form of monitoring to ensure they complied with any undertaking to voluntarily arrange their own departure. These non citizens would avoid arrest and detention. They would also avoid the penalties imposed for those who do not depart New Zealand voluntarily. It may benefit asylum claimants who would otherwise be released on conditions by limiting the need for them to go through a warrant hearing. This provision would give monitoring agreements legislative support and enable their use to be formally established in operational instructions. It would reduce the need for the Department to manage non citizens who may be liable for detention through the court process. This would benefit the government through a reduction in all costs associated with warrant hearings including those to the Department and to the courts. Release on conditions and immigration detention Status Quo, Policy Problem and Magnitude: The 1987 Act limits the ability of the courts to release a non citizen on conditions in some circumstances. For example, under section 60, if the courts agree that some management of a noncitizen is required, they must issue a warrant for secure detention. The noncitizen may not be released on conditions until their third warrant hearing. This limits the ability of the courts to use their discretion and respond appropriately to each individual case. Preferred Option: The Bill allows the courts to release a non citizen on conditions, or to detain them considering the: individual circumstances of their case level of risk the non citizen represents, and need to ensure a high level of compliance with immigration law. In considering the level of risk, it is proposed that where a non citizen s identity is unknown they cannot be released on conditions. This acknowledges that where identity is unknown, an appropriate risk assessment cannot take place. Net Benefit of the Proposal: Under this proposal the courts will not be compelled to authorise secure detention of a non citizen unless their identity is unknown. This will give the courts much greater discretion in deciding an 2
appropriate response to an individual s case. It will benefit non citizens by enabling the courts to consider their circumstances and respond appropriately. Where identity was unknown, the requirement that the non citizen be detained would assist in compelling the non citizen to provide identity details. In this circumstance, the legislation will guide the courts more, and give greater rights to the non citizen than provided for under section 138A. Where secure detention is sought, the Department will be required to demonstrate good reason for the need for this type of detention to the courts. The immigration detention of those whose identity was unknown would enable the Department to manage any potential risk. Length of detention Status Quo, Policy Problem and Magnitude: In most circumstances, immigration detention can continue for as long as the courts are prepared to issue a warrant except under section 60 of the 1987 Act, where a non citizen issued with a removal order can only be detained for three months, except where they make an asylum claim or hinder their departure. Preferred Option: It is proposed that where a non citizen has exhausted all appeal rights and has no right to remain in New Zealand, and they have not departed after an ongoing period of secure immigration detention of six months, the courts may not issue any further warrants for secure immigration detention except where a direct or indirect reason for the non citizen failing to depart is due to some action or inaction by the non citizen themselves. It is proposed that the courts can issue further warrants for secure immigration detention after six months where the Department can provide evidence to the courts of the non citizen s deliberate obstruction of the removal process, and satisfy the other provisions required for the issue of a warrant. Where a non citizen has exhausted all appeal rights and has no right to remain in New Zealand, and they have not departed after an ongoing period of secure immigration detention of 12 months, it is proposed that the Bill require the courts to consider ordering the non citizen to either: cease the action preventing their departure being facilitated, or undertake an action in order to facilitate their departure. Net Benefit of the Proposal: The proposal will have limited impact on most non citizens as those held in immigration detention are rarely detained for extended periods. For example, while the proposal above would remove the current three month limit on immigration detention under section 60 in the 1987 Act for non citizens issued a removal order (where they do not subsequently claim refugee status or hinder the removal process), this group of non citizens is rarely detained for any extended period of time, most frequently having their departure facilitated within one or two days of their detention under a warrant. 3
Where a non citizen is detained for an extended period there will be clear statutory limits on the length of their detention imposed by the Bill expect where the non citizen themselves hinders their departure. Where they hinder there departure, the proposal above will see the Bill contain a statutory provision enabling the courts to order them, for example, to sign travel documents where they have been in secure immigration detention for an ongoing period of 12 months. It would result in an ability to find the non citizen in contempt of court where they fail to do so. The non citizen could then be detained in the criminal justice system until they signed travel documentation if the courts thought this appropriate. The Department will continue to facilitate expediently the departure of noncitizens in detention so this proposal will be of limited impact. Warrants of Commitment Status Quo, Policy Problem and Magnitude: The provisions for initial and subsequent warrants vary throughout the 1987 Act and limit the ability of the court to use discretion. Initial warrants can be issued for up to seven days under section 59 and 60 of the Act, with subsequent warrants of up to 30 days under section 60. Under sections 97, 128 and 128B initial warrants can be issued for up to 28 days, with subsequent warrants of up to 7 days. Where a warrant is issued, the Department can only apply for a review of subsequent warrants under section 128. A non citizen can apply for a review of an initial warrant issued under sections 75, 78 and 97 but only for subsequent warrants issued under sections 97 and 128. Preferred Option: That the Bill enables the courts to issue a warrant of commitment for up to 28 days. The courts can then set an appropriate point end point within that timeframe considering the circumstances of the case. Also, that the Bill enables the Department or a non citizen to apply for a warrant review where new circumstances can be presented. Net Benefit of the Proposal: The proposal will benefit non citizens by reducing the rubber stamping of warrant applications as the courts will have greater discretion to consider the circumstances of their case. Any reduction in attendance at warrant hearings will be less disruptive to the non citizen (in particular those in secure detention who are searched on return from each warrant hearing). A non citizen will be able to request a review of the warrant in all circumstances where new information can be considered by the courts. Safeguards, such as maintaining habeas corpus and enabling the Department and non citizens to seek a warrant review in light of new information, along with entitlement to legal aid, ensures that access to the courts will not be limited by this proposal. The government will benefit by any reduction in the number of warrant hearings. The benefit will be financial, but will also enable officers greater time to undertake other functions such as facilitating expediently the departure of non citizens. There will be a wider financial benefit to the government in any reduction of 4
warrant hearings, saving the time and money for Corrections and Police who currently escort non citizens to their hearing, and to the courts. Warrants of Commitment for criminal prisoners Status Quo, Policy Problem and Magnitude: Where a non citizen is alleged to have committed a criminal offence during their travel to and entry into New Zealand, they may be refused entry to New Zealand for immigration purposes, limiting their entitlement to appeal to remain in New Zealand. The Department is required to continue to seek and renew a warrant for the entire duration of a noncitizens engagement in the criminal justice system if they are to retain refused entry status. Preferred Option: It is proposed that the Bill waive the requirement to renew a warrant where a non citizen has been refused entry to New Zealand, and arrested for the purpose of a criminal justice trial. Net Benefit of the Proposal: This proposal would ensure that a non citizen who committed a criminal offence while travelling to and entering New Zealand did not gain any rights in the immigration system while they were engaged in the criminal justice system. In this circumstance, the non citizen would not be detained for immigration purposes under immigration legislation. Any term of imprisonment, be that remand or a criminal sentence would be a matter for the courts to consider under criminal legislation. The proposal would mean that the Department would not be required to seek a warrant every seven days to ensure this that a non citizen did not gain any rights in the immigration system they would not have otherwise been entitled. If the non citizen was not convicted of an offence, or did not depart at the end of their prison sentence, any monitoring or detention would be undertaken according to immigration detention requirements. If the non citizen did not require monitoring and detention, and had a right to remain in New Zealand, their immigrating status could be regularised. Who may be monitored or detained Status Quo, Policy Problem and Magnitude: There are limitations on the ability to detain non citizens who may represent a risk, for example, during any period in which they are entitled to an immigration appeal, and the duration of that appeal. Also, if a non citizen who represents a risk makes an asylum claim onshore they cannot be detained. Non citizens who may have received residence through fraud cannot be detained during any appeal process. Preferred Option: That the Bill allow non citizens to be monitored and detained where they fail to comply with the requirements of the immigration system, and represent or are suspected of representing a risk to New Zealand, where: they are refused entry at the border they avoid or evade border controls their identity is unknown they are a risk or threat to national security 5
they are liable for deportation, or they have been issued a deportation order. Net Benefit of the Proposal: This may mean that a non citizen undertaking an appeal against liability for deportation may be detained. This proposal is appropriate as a non citizen s ability to access appeals does not necessarily reduce any potential risk they may present. For example, if a non citizen is appealing against liability for deportation due to residence fraud, their identity may be unknown, or their actual identity (rather than their assumed identity) may confirm them as a person who would not have been granted permission to enter New Zealand. An onshore asylum seeker may also be detained if they fall into a category outlined above as may a non citizen who avoids or evades border controls. In these circumstances the detention would also be used to address a range of risks, for example, an intention to abscond during any consideration of the circumstance of their case, or the risk presented where their identity was unknown. The ability to manage risks presented by non citizen will be the key benefit to the government. Initial detention without a warrant Policy Problem and Magnitude: The Department has increasingly found that the time allowed for detention without a warrant is not sufficient to facilitate the departure of non citizens. Particularly as a result of 11 September 2001, the administrative requirements for facilitating departures of have become more complex. Factors which influence this include: airline clearances/approvals obtaining Police clearances obtaining Police escorts flight availability difficulty obtaining travel documents, and internal and international administrative difficulties. Status Quo: Detention without a warrant can occur for either 48 hours under sections 75, 78, 97, 128 and 128B or 72 hours under sections 59 and 60 of the Act. This was intended to grant the Department enough time to facilitate the departure of non citizens or to make an appropriate decision on the need for any ongoing monitoring and detention depending on the individual circumstances of their case. Preferred Option: The Bill enable non citizens to be detained without a warrant of commitment for an initial period of up to 96 hours (four days). Net Benefit of the Proposal: The proposal should significantly reduce the need for non citizens who are refused entry at the border to be detained in Corrections facilities which generally occurs after a warrant hearing. Non citizens could remain in Police facilities close to the airport while awaiting their departure. 6
The proposal will allow the Department a longer period of time to expedite the departure of non citizens, limiting the need to spend time on seeking a warrant of commitment which is estimated at eight hours. Power of Detention Policy Problem and Magnitude: The 1897 Act limits the ability of the Department to fully undertake its role in managing the immigration system by requiring Police to give effect to immigration detention in all circumstances. While Police are committed to working with the Department, in some circumstances, their intervention to give effect to immigration detention may not be an effective use of resources or an appropriate response to the circumstance of the case. Status Quo: Police are required to give effect to immigration detention. Alternative Option: Designated officers are able to undertake ongoing immigration detention without limitation. Preferred Option: The Bill has a statutory power for designated officers to detain non citizens for immigration purposes for up to four hours, or until Police give effect to the detention, or until the non citizen is detained in a place of detention, whichever occurs first. The Department would be required to give any effect to detention within the requirements of the law and could be investigated by Police for any breach. Complaints about detention could also be made to the ombudsman or Human Rights Commission, depending on the nature of the complaint. Net Benefit of the Proposal: A non citizen may benefit from a departmental approach to managing detention that is not law enforcement focused, for example, the proposal would enable designated officers to act as escorts where a non citizen was having their departure facilitated, or needed to be escorted from secure detention to a warrant hearing. The government could benefit from not having to rely on the availability of Police, for example: When a non citizen arrives at the airport and is refused entry, a designated officer could manage their detention, if it was required, where they were departing within a short period. Where a non citizen is in New Zealand unlawfully and is located during the course of regular departmental business, they could be detained and the Department could have them remain at a place while Police arrive to detain them, or take them to the Police. At a seaport a non citizen who may be refused entry and consequently liable for detention would have less opportunity to abscond. 7
Managing detention Policy Problem and Magnitude: The 1987 Act limits the Department s ability to manage immigration detention to refused entry non citizens. The Department cannot therefore manage the detention of non citizens who have been granted entry at any point but become liable for detention (for example, due to being overstayers unlawfully in New Zealand). Status Quo: The Department s ability to manage immigration detention outside Police and Corrections facilities is limited. Preferred Option: It is proposed that the provisions in the 1987 Act, which enable the Department to manage detention, for example at the Mangere Accommodation Centre, be incorporated in the Bill without limiting them to refused entry non citizens. Net Benefit of the Proposal: This proposal would have two significant implications: In the short term, it would enable the Department to manage detention of all protection claimants at Mangere (where this is appropriate). This would support the overwhelming concern expressed in the submissions that protection claimants should not be detained in facilities that are associated with criminality, or where they may be further traumatised. In the long term, it would future proof the legislation. Combined with the powers to undertake immigration detention in the Corrections Act, it would allow the government to consider alternatives for immigration detention outside the use of Police or remand cells for non citizens liable for detention who did not have refused entry status. Statement of Consultation Undertaken Stakeholder Consultation: There was a significant amount of feedback on the detention proposals with many submitters expressing the view that detention should be used as infrequently as possible and for the shortest possible time. Concern was expressed that the detention system was consistent with New Zealand s national and international obligations and that the individual rights of non citizen s were upheld. 35 percent of 87 submitters were opposed to the proposal to extend the initial period of detention without a warrant to 96 hours believing that it would impact on an individual s right to access the courts. Similar feedback was received on the proposal to allow the courts to issue a warrant of commitment for up to 28 days. Some concern was expressed about the proposal to grant certain officers a limited power of detention with a general impression that all officers would have the power. Submitters commented on the need for specialist training and attention to the rights of detainees in using such a power. 8
Government Departments/Agencies Consultation: The Ministry of Justice raised concerns about the provisions in the 1987 Act that allowed for ongoing secure immigration detention. A statutory limit has now been proposed in most circumstances. 9