1 IMMIGRATION ACT REVIEW OVERVIEW APRIL 2006
2 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. I m pleased to be launching the public consultation on the Immigration Act review the most comprehensive review of immigration legislation in 20 years. I encourage New Zealanders to provide feedback, and contribute to making New Zealand s immigration framework stronger, more flexible and fit for the 21st century. Immigration helps build New Zealand contributing to the diversity of our communities, the shape of our workforce and the growth of our economy. The government s goal for immigration is to facilitate the entry of people with the skills we need, and assist them to settle into a new life in a new country while maintaining the security of our borders. We intend to deliver this and have begun work to make sure we have the best possible immigration system. This is based on three pillars: legislative reform; a strategic review of key aspects of New Zealand s immigration policy; and supporting operational and process changes 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 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. 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. There is greater awareness, too, that these increased movements of people require us to manage risks and maintain the integrity of our border and systems. This international backdrop is why New Zealand needs modern legislation which allows us to make simpler, fairer and faster decisions, to guide our immigration systems and processes into the 21st century. At the same time as improving our security, the revised Act will support our drive for higher levels of client service, to facilitate the entry of migrants who have the potential to make a strong contribution to our economy and society. I must stress that this document presents a range of options for public discussion and is not Government policy. I look forward to your contributions towards this review. HON DAVID CUNLIFFE Minister of Immigration
3 OVERVIEW INTRODUCTION Immigration plays an important role in building New Zealand society and encouraging economic growth. Skilled and family migrants, business people, temporary workers, students and visitors make valuable contributions to our economy and strengthen our communities. Immigration also plays a role in fulfilling New Zealand s international obligations. At the same time, immigration raises complex challenges for New Zealand. Issues range from questions about our national identity and our role on the international stage, to the impact of immigration on the economy, labour market, social development, health, education, law and order, housing and transport infrastructure. 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. THE WIDER IMMIGRATION CHANGE PROGRAMME Immigration is essential to New Zealand s economy in a rapidly globalising world. Powerful forces are changing the way immigration works and the immigration system needs to respond to this. The Immigration Act review is therefore part of a broader immigration change programme focusing on skills, security and settlement. The programme aims to improve the immigration system to ensure that: New Zealand has the skills, talent and labour it needs, now and in the future New Zealanders are confident of the security of our border, and migrants and refugees settle well and integrate into communities. The three interlocking components to the immigration change programme are: developing a strong legislative foundation implementing a new business model, and repositioning the policy framework. The change programme as a whole will ensure that we have a modern immigration service, fit for the globally competitive environment of the 21st century. It will enable New Zealand to facilitate high-value, low-risk customers and effectively protect the border. This will provide a well-balanced and integrated framework that is focused on supporting people to connect 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 opportunities and challenges. The current Immigration Act dates from There have been significant changes internationally in the last 20 years, including: greater people flows around the world greater competition for skills, talent and labour heightened risk and pressure on the border, and 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 change programme, demonstrating how it is integrated with common drivers, goals and outcomes.
4 Summary of change programme and its environment Drivers of change Increasing: circulation of people competition diversity risk Goals to better position immigration Skills Security Settlement Integrated change programme Develop a strong legislative foundation Implement a new business model Reposition the policy framework Objective Supporting New Zealand to achieve: Economic transformation Strong national identity Security and opportunity for families Greater people flows around the world New Zealand, like many parts of the world, has gone through a period of transformation over the past 20 years. Flows of people travelling and migrating have increased and diversified. Our international connections have increased through trade, tourism and business activity. Information about New Zealand has become more accessible, communication easier and travel cheaper. To illustrate this growth, permanent immigration flows have increased significantly, from 8,500 approvals in 1985 to almost 49,000 in 2004/05. Temporary entry has experienced phenomenal growth over the same period, with visitor arrivals escalating from 690,000 to 2.4 million. The 21,400 temporary workers and students who arrived in 1985 is small compared to the 100,000 plus who entered in 2004/05. Tourism and international education feature in New Zealand s top five largest export industries. Greater competition for skills, talent and labour Immigration is a key ingredient in a strong labour market that builds productivity, participation and skills. New Zealand employers, businesses and communities are seeing the benefits of both permanent migrants and people on temporary permits. Strong economic growth, ageing populations and shrinking fertility rates in the developed world have increased world-wide competition for people with skills as well as for unskilled labour. Unemployment trends over the last 17 years illustrate the changes in our labour market. Unemployment rose sharply in the late 1980s, peaking at 10.3 percent in This compares with the current low of 3.6 percent. These changes have led to increasing pressure on immigration to help meet immediate skill and labour requirements. Heightened risk and pressure on the border Along with increasing competition and flows of people, there is the heightened threat of international terrorism, illegal migration and trans-national organised crime. These issues have sharpened the focus on security and the need to establish effective border controls and enforcement measures. Security measures need to complement an immigration system that facilitates the entry of high-value migrants and travellers. A sharpened focus on security means it is increasingly important to be clear about our international human rights obligations. World refugee numbers have steadily fallen to around 9 million a 25-year low. While refugee resettlement remains important, new challenges have arisen, including how we address a broader range of international obligations, such as the Convention Against Torture.
5 Increasing diversity and a sharper focus on settlement Over the past two centuries, increasing numbers of migrants from Australia and Europe, followed by the Pacific and Asia, have settled in New Zealand. Immigration has shaped our ethnic diversity 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 by 2001, this had reached almost 20 percent. Growing diversity raises particular challenges for New Zealand in terms of nation building. Achieving good settlement outcomes can continue to be an 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. Responsive legislation Responsive immigration legislation is the foundation of the change programme. Responsive legislation is required to accommodate changes in the global security environment and in social and economic conditions that motivate migrants behaviour. Immigration legislation needs to facilitate the entry of the high value customers we need, while providing the framework to effectively protect the border. It needs to be able to respond to the current skills 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. THE OBJECTIVES OF THE IMMIGRATION ACT REVIEW The government is committed to ensuring that immigration legislation is clear, comprehensive and appropriate to New Zealand s needs. The objectives of the review are to: ensure that New Zealand s interests are protected and advanced ensure compliance with international obligations establish fair, firm and fast decision-making processes, and modernise and simplify the legislation. The government is particularly focused on both: 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. Immigration policy and operations are being reviewed as part of the wider immigration change programme discussed above. Current legislation provides the high-level legal basis on which a person may be in New Zealand, the procedures to be followed and the powers of the Minister of Immigration and officials in administering and enforcing immigration rules. In particular, the legislation allows the Minister of Immigration to set immigration policy. 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.
6 SUMMARY OF KEY PROPOSALS AND BENEFITS - IMMIGRATION ACT REVIEW Facilitation, fairness and a system that is easier to use Clear purpose and principles The new legislation will have a clear purpose focused on New Zealand s interests. The new legislation will be underpinned by clear principles, including: fairness effective decision-making efficient processes, and understandable and accessible legislation. This would help ensure the immigration system: generates sustainable economic growth establishes strong communities fulfils New Zealand s role as a good international citizen, and supports international co-operation. It would also ensure the immigration system is: fair effective efficient, and easy to use and understand. A system that is flexible and easier to use The new legislation will: 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 This would ensure the immigration system facilitates the entry of high-value low-risk customers by being: 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. provide a clearer basis for the role of third parties in the immigration system (including sponsors, employers, education providers and carriers).
7 Fairness and transparency The new legislation will: ensure that immigration applicants are given potentially prejudicial information and reasons for decisions when appropriate ensure appropriate access to review and appeal of immigration decisions, and establish a single immigration and refugee appeals tribunal serviced by the Ministry of Justice. This would: ensure that the immigration system is fair and transparent ensure access to independent appeal mechanisms improve the effectiveness and efficiency of appeals processes, and support those with real interests in being in New Zealand. Being a good international citizen The new legislation will: 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. 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.
8 Integrity and security in the immigration system Better tools for decision-making Classified information could be used in decisionmaking by: 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. This would prevent inaccurate decisions from being made because classified information could not be used. 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 A new expulsion system will be established that includes: automatic liability for expulsion streamlined review and appeal rights a single humanitarian appeal test including exceptional circumstances and the public interest This would: 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
9 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 The new Immigration Act will confer: 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. 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. 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.
10 Detention The detention system will be adjusted to ensure an appropriate: maximum period of detention without a warrant review period for detention warrants maximum period of detention ability to detain when a person is at the border and in New Zealand, and administrative power to support the Department of Labour s current ability to designate places of detention outside Police or Corrections facilities. This would: ensure greater discretion for judges to determine if detention is appropriate retain individual rights protections allow for release on conditions and open detention to be used in cases where a person must currently remain in the community 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.
11 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. 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. 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. To make it easy for you to comment on the Immigration Act Review, an online feedback form is available at Alternatively, comments can be ed or posted to the Department of Labour. The due date for comments is 14 June Your input will inform advice to Cabinet in late 2006, with a view to introducing a Bill to Parliament in Our contact details are: Website: address: Postal address: Immigration Act Review Department of Labour PO Box 3705 Wellington 10
12 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