IMMIGRATION
ACT REVIEW
OVERVIEW
APRIL 2006
MINISTER’S FOREWORD
and New Zealand’s priorities. The extent of these
changes means it’s timely to properly review and
update our legislative framework.
Today, New Zealand is facing new challenges. In an
environment of low unemployment and skill shortages,
it is imperative that we have legislation which is
responsive to New Zealand’s labour market needs,
with the flexibility to allow for future changes.
I’m pleased to be launching
the public consultation on the
Immigration Act review – the most
comprehensive review of immigration
legislation in 20 years.
Globally, immigration is changing. People are
becoming more mobile, often not settling in one place
for a long time – which is contributing to increasingly
diverse communities. It means we also have to be
at the top of our game to respond to international
competition to attract skilled and talented people.
I encourage New Zealanders to provide feedback, and
There is greater awareness, too, that these increased
contribute to making New Zealand’s immigration
movements of people require us to manage risks and
framework stronger, more flexible and fit for the 21st
maintain the integrity of our border and systems.
century.
This international backdrop is why New Zealand needs
Immigration helps build New Zealand – contributing
modern legislation which allows us to make simpler,
to the diversity of our communities, the shape of our
fairer and faster decisions, to guide our immigration
workforce and the growth of our economy.
systems and processes into the 21st century.
The government’s goal for immigration is to facilitate
At the same time as improving our security, the
the entry of people with the skills we need, and assist
revised Act will support our drive for higher levels of
them to settle into a new life in a new country – while
client service, to facilitate the entry of migrants who
maintaining the security of our borders.
have the potential to make a strong contribution to our
We intend to deliver this and have begun work to make
economy and society.
sure we have the best possible immigration system. This
I must stress that this document presents a range
is based on three pillars: legislative reform; a strategic
of options for public discussion and is not Government
review of key aspects of New Zealand’s immigration
policy. I look forward to your contributions towards
policy; and supporting operational and process changes
this review.
within the Department of Labour.
The Immigration Act is the foundation for the
immigration policies and processes that allow the entry
of workers, students, visitors and residents into New
Zealand, and sets the rules that govern their stay here.
Since the current Act came into force in 1987 there have
been major changes in the international environment
HON DAVID CUNLIFFE
Minister of Immigration
OVERVIEW
INTRODUCTION
•
migrants and refugees settle well and integrate
into communities.
Immigration plays an important role in building
New Zealand society and encouraging economic
The three interlocking components to the immigration
growth. Skilled and family migrants, business people,
change programme are:
temporary workers, students and visitors make
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developing a strong legislative foundation
•
implementing a new business model, and
fulfilling New Zealand’s international obligations.
•
repositioning the policy framework.
At the same time, immigration raises complex
The change programme as a whole will ensure that we
challenges for New Zealand. Issues range from
have a modern immigration service, fit for the globally
questions about our national identity and our role on
competitive environment of the 21st century. It will
the international stage, to the impact of immigration
enable New Zealand to facilitate high-value, low-risk
on the economy, labour market, social development,
customers and effectively protect the border. This will
health, education, law and order, housing and transport
provide a well-balanced and integrated framework
infrastructure.
that is focused on supporting people to connect
valuable contributions to our economy and strengthen
our communities. Immigration also plays a role in
The government is reviewing the Immigration Act 1987
(the Immigration Act) to ensure that the legislation
enables New Zealand to both facilitate the entry of the
people New Zealand needs and effectively protect our
border. The Immigration Act Review Discussion Paper,
April 2006 identifies key issues and seeks your views
on how they should be addressed.
and contribute. Taken together, the change elements
will further the government’s goals of economic
transformation, strong national identity, and security
and opportunities for families.
Drivers for change
This immigration reform programme takes place
within a changing global environment that presents
THE WIDER IMMIGRATION CHANGE
PROGRAMME
Immigration is essential to New Zealand’s economy
opportunities and challenges. The current Immigration
Act dates from 1987. There have been significant
changes internationally in the last 20 years, including:
•
greater people flows around the world
are changing the way immigration works and the
•
greater competition for skills, talent and labour
immigration system needs to respond to this.
•
heightened risk and pressure on the border, and
The Immigration Act review is therefore part of a
•
in a rapidly globalising world. Powerful forces
broader immigration change programme focusing on
skills, security and settlement. The programme aims
to improve the immigration system to ensure that:
•
•
a more diverse population requiring a sharper
focus on settlement and integration.
We need to reposition the immigration system to face
these challenges. The diagram below summarises the
New Zealand has the skills, talent and labour it
change programme, demonstrating how it is integrated
needs, now and in the future
with common drivers, goals and outcomes.
New Zealanders are confident of the security of
our border, and
Summary of change programme and its environment
Goals to better
position immigration
Integrated change
programme
• circulation of people
• Skills
• competition
• Security
• diversity
• Settlement
• Develop a strong
legislative
foundation
Drivers of change
Increasing:
• risk
Greater people flows around the world
New Zealand, like many parts of the world, has gone
Objective
Supporting New
Zealand to achieve:
• Economic
transformation
• Implement a new
business model
• Strong national
identity
• Reposition the
policy framework
• Security and
opportunity for
families
world-wide competition for people with skills as well
as for unskilled labour.
through a period of transformation over the past
Unemployment trends over the last 17 years illustrate
20 years. Flows of people travelling and migrating
the changes in our labour market. Unemployment
have increased and diversified. Our international
rose sharply in the late 1980s, peaking at 10.3 percent
connections have increased through trade, tourism and
in 1991. This compares with the current low of 3.6
business activity. Information about New Zealand has
percent. These changes have led to increasing pressure
become more accessible, communication easier and
on immigration to help meet immediate skill and
travel cheaper.
labour requirements.
To illustrate this growth, permanent immigration flows
have increased significantly, from 8,500 approvals in
Heightened risk and pressure on the border
1985 to almost 49,000 in 2004/05. Temporary entry has
Along with increasing competition and flows of
experienced phenomenal growth over the same period,
people, there is the heightened threat of international
with visitor arrivals escalating from 690,000 to 2.4
terrorism, illegal migration and trans-national
million. The 21,400 temporary workers and students
organised crime. These issues have sharpened the
who arrived in 1985 is small compared to the 100,000
focus on security and the need to establish effective
plus who entered in 2004/05. Tourism and international
border controls and enforcement measures. Security
education feature in New Zealand’s top five largest
measures need to complement an immigration system
export industries.
that facilitates the entry of high-value migrants and
travellers.
Greater competition for skills, talent and labour
A sharpened focus on security means it is increasingly
Immigration is a key ingredient in a strong labour
important to be clear about our international human
market that builds productivity, participation and
rights obligations. World refugee numbers have
skills. New Zealand employers, businesses and
steadily fallen to around 9 million – a 25-year low.
communities are seeing the benefits of both permanent
While refugee resettlement remains important, new
migrants and people on temporary permits. Strong
challenges have arisen, including how we address a
economic growth, ageing populations and shrinking
broader range of international obligations, such as the
fertility rates in the developed world have increased
Convention Against Torture.
Increasing diversity and a sharper focus on
settlement
THE OBJECTIVES OF THE
IMMIGRATION ACT REVIEW
Over the past two centuries, increasing numbers of
The government is committed to ensuring that
migrants from Australia and Europe, followed by
immigration legislation is clear, comprehensive and
the Pacific and Asia, have settled in New Zealand.
appropriate to New Zealand’s needs. The objectives of
Immigration has shaped our ethnic diversity
the review are to:
and remains a key contributor to New Zealand’s
development today.
•
A combination of natural population growth and
migration has increased our population from 3.3
million in 1986 to over 4.1 million today. In 1986,
around 15 percent of the population was born overseas
•
ensure compliance with international obligations
•
establish fair, firm and fast decision-making
processes, and
– by 2001, this had reached almost 20 percent.
Growing diversity raises particular challenges for
ensure that New Zealand’s interests are protected
and advanced
•
modernise and simplify the legislation.
New Zealand in terms of nation building. Achieving
good settlement outcomes can continue to be an
The government is particularly focused on both:
issue for subsequent generations of migrant and
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host communities. Settlement policy will become
increasingly important as a means of ensuring
integration.
It is important to ensure that the immigration system
is optimally positioned to face these emerging
challenges. The immigration change programme will
ensure that we have a modern immigration service,
fit for the globally competitive environment of the
21st century.
facilitating the entry and stay of people who meet
New Zealand’s needs, and
•
managing any risks associated with immigration.
THE SCOPE OF THE IMMIGRATION ACT
REVIEW
Legislation not policy
The Discussion Paper reviews immigration legislation
rather than immigration policy or operations.
Responsive legislation
Responsive immigration legislation is the foundation
of the change programme. Responsive legislation
Immigration policy and operations are being reviewed
as part of the wider immigration change programme
discussed above.
is required to accommodate changes in the global
Current legislation provides the high-level legal
security environment and in social and economic
basis on which a person may be in New Zealand,
conditions that motivate migrants’ behaviour.
the procedures to be followed and the powers of the
Immigration legislation needs to facilitate the entry
Minister of Immigration and officials in administering
of the high value customers we need, while providing
and enforcing immigration rules. In particular, the
the framework to effectively protect the border. It
legislation allows the Minister of Immigration to set
needs to be able to respond to the current skills
immigration policy.
shortages, and to cope in times of high unemployment.
The unpredictability of what lies ahead for New
Zealand also reinforces the need for flexible legislation
for the future.
However, the Immigration Act review may question
whether some matters currently in policy should be set
out in legislation. New immigration policy may also be
required in places to support the new legislation.
SUMMARY OF KEY PROPOSALS AND BENEFITS IMMIGRATION ACT REVIEW
Facilitation, fairness and a system that is easier to use
Clear purpose and principles
Proposals
Benefits
The new legislation will have a clear purpose focused
on New Zealand’s interests.
This would help ensure the immigration system:
•
generates sustainable economic growth
The new legislation will be underpinned by clear
principles, including:
•
establishes strong communities
•
fulfils New Zealand’s role as a good
international citizen, and
supports international co-operation.
•
fairness
•
effective decision-making
•
•
efficient processes, and
It would also ensure the immigration system is:
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understandable and accessible legislation.
•
fair
•
effective
•
efficient, and
•
easy to use and understand.
A system that is flexible and easier to use
Proposals
Benefits
The new legislation will:
This would ensure the immigration system
facilitates the entry of high-value low-risk
customers by being:
•
have a simplified, integrated “visa” system for travel
to, entry and stay in New Zealand
•
allow delegation of power to make exceptions
to residence policy (to selected senior immigration
officials only)
•
enable third party and electronic decision-making
for low-risk approvals
•
enable permit extensions for people who lodge a
further application while lawfully in New Zealand
•
retain discretion for permits to be granted to
persons in New Zealand unlawfully, and
•
provide a clearer basis for the role of third parties
in the immigration system (including sponsors,
employers, education providers and carriers).
•
easy to use and understand
•
competitive in the global market
•
effective and efficient
•
up-to-date with technology
•
flexible for future changes, and
•
supportive of the role of sponsors, education
providers, employers and carriers.
Fairness and transparency
Proposals
Benefits
The new legislation will:
This would:
•
ensure that immigration applicants are given
potentially prejudicial information and reasons
for decisions when appropriate
•
ensure that the immigration system is fair
and transparent
•
•
ensure appropriate access to review and appeal
of immigration decisions, and
ensure access to independent appeal
mechanisms
•
•
establish a single immigration and refugee
appeals tribunal serviced by the Ministry
of Justice.
improve the effectiveness and efficiency of
appeals processes, and
•
support those with real interests in being in
New Zealand.
Being a good international citizen
Proposals
Benefits
The new legislation will:
This would ensure that the immigration system:
•
•
upholds New Zealand’s international
obligations
•
is responsive to those in need
•
is efficient (does not require multiple decisionmakers and years of delays), and
•
supports international co-operation.
clearly set out New Zealand’s international
obligations under the Refugee Convention, the
Convention Against Torture and the International
Covenant on Civil and Political Rights
•
establish a single procedure for determining
refugee and protection status, and
•
establish a single right of appeal.
Integrity and security in the immigration system
Better tools for decision-making
Proposals
Benefits
Classified information could be used in decisionmaking by:
This would prevent inaccurate decisions from
being made because classified information could
not be used.
•
•
allowing classified information to be used in all
immigration decision-making without releasing
it to the applicant, and
establishing a process that allows for an
independent appeal against onshore decisions
that rely on classified information.
Officers will be able to:
•
•
require, use and store certain types of biometric
information (such as photographs) to assist in
immigration and refugee decision-making, and
request the voluntary provision of other types of
biometric information (such as DNA) in a more
limited range of circumstances.
It would ensure that:
•
all the facts of an application could be
considered
•
character requirements are met, and
•
fairness standards are maximised.
This would:
•
allow immigration systems to keep up-to-date
with advances in passport technology, and
internationally agreed standards of identity
verification
•
support an efficient and effective immigration
system for those who are low risk and honest
•
•
help reduce the risks of identity fraud, and
contribute to New Zealand’s safety and
security.
Streamlined expulsion and appeal mechanisms
Proposals
Benefits
A new expulsion system will be established that
includes:
This would:
•
automatic liability for expulsion
•
streamlined review and appeal rights
•
a single humanitarian appeal test including
exceptional circumstances and the public interest
•
improve clarity on what migrants’ obligations
are and when a person is liable for expulsion
•
allow flexibility for a person to stay in special
circumstances
Proposals
Benefits
•
a single immigration and refugee appeals
tribunal, and
•
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provision to expel protected people who have
committed serious offences or are a risk to
New Zealand (where this is consistent with the
relevant international obligations).
reduce the time it takes to expel a person
by reducing multiple appeal routes, while
maintaining fairness, and
•
ensure New Zealand’s public interest and
international obligations are taken into
account.
The new appeals tribunal would:
•
improve efficiency and effectiveness in the
appeals system, and
•
improve knowledge sharing and reduce the
risks of backlogs.
Compliance and enforcement
Proposals
Benefits
The new Immigration Act will confer:
This would:
•
•
improve the efficiency and effectiveness of
immigration investigations
•
close loopholes in the current system that
reduce the ability of immigration officers to
enforce compliance
•
ensure privacy and individual rights safeguards
through appropriate training, delegations, and
limitations on powers
•
ensure rules on access to publicly-funded
services are upheld and entitlements protected
•
minimise tax-payer subsidies for those who
unlawfully access services, and
•
ensure that those third parties that benefit
from the immigration system fulfil their
responsibilities.
•
•
on immigration officers powers to require
information to locate people unlawfully in
New Zealand and people under investigation
for breaches of the Immigration Act
on immigration and Customs officers powers to
detain a person for immigration reasons in the
absence of a Police officer for up to four hours,
and
on immigration officers powers of search and
entry for immigration reasons in the absence
of Police or Customs officers.
The new legislation will:
•
enable information-sharing to assess entitlement
to publicly funded services, and
•
ensure appropriate provisions for third-party
compliance.
Input on whether and how to share a person’s
immigration status with other third parties such as
employers is being sought from the public.
Detention
Proposals
Benefits
The detention system will be adjusted to ensure an
appropriate:
This would:
•
ensure greater discretion for judges to
determine if detention is appropriate
review period for detention warrants
•
retain individual rights protections
•
maximum period of detention
•
•
ability to detain when a person is at the border
and in New Zealand, and
allow for release on conditions and open
detention to be used in cases where a person
must currently remain in the community
•
administrative power to support the Department
of Labour’s current ability to designate places of
detention outside Police or Corrections facilities.
•
better ensure that a person can be detained to
allow for expulsion
•
reduce high administrative costs on the
Department of Labour and the courts, and
•
improve our already high standards regarding
immigration detention.
•
maximum period of detention without a warrant
•
PROCESS FOR FEEDBACK
The Immigration Act Review Discussion Paper is
available online. Hard copies can be requested from the
Department of Labour. Web and contact details are set
out below.
In May 2006, the Department of Labour will meet
with stakeholders who have a particular interest in
immigration legislation to discuss this document and
collect feedback.
Relevant links
The Immigration Act 1987 and the Immigration
Regulations 1999 can be viewed online at www.
legislation.govt.nz.
For the Immigration Act, click on Statutes, then click
on I under A-Z Contents. For the regulations, click
on Statutory Regulations, then click on I under A-Z
Contents.
You are invited to comment on the Discussion Paper or
on any other issues relating to immigration legislation.
Where applicable, comments should make specific
reference to the relevant section in the Discussion
Paper and to the key questions raised.
To make it easy for you to comment on the Immigration
Act Review, an online feedback form is available at
www.dol.govt.nz. Alternatively, comments can be
emailed or posted to the Department of Labour.
The due date for comments is 14 June 2006. Your input
will inform advice to Cabinet in late 2006, with a view
to introducing a Bill to Parliament in 2007.
Our contact details are:
Website: www.dol.govt.nz
E-mail address: actreview@dol.govt.nz
Postal address:
Immigration Act Review
Department of Labour
PO Box 3705
Wellington
10
DISCLAIMER
The proposals contained in this document are a summary of detailed discussions contained in the full Immigration
Act Review Discussion Paper. These documents are provided for public discussion and feedback and do not constitute
government policy. The New Zealand Government does not take responsibility for any actions taken in reliance on the
information in this document.
DOL10079 APR 06