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 • 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 • 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: • 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 • • 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