The key aspects of the Immigration Bill, as passed at its third reading, are outlined below.  Where there is a significant difference to the current legislation, it is outlined. 

Facilitating passenger processing (various parts)

The amendments were made to the Bill by way of the Supplementary Order Paper to support passenger processing, for example, any future Government decisions to facilitate simplified passenger travel between New Zealand and Australia.  These changes will ensure the new Act is fit for purpose both now and into the future.

The inclusion of a purpose statement (Part 1)

Unlike the Immigration Act 1987, the Bill contains a purpose statement.  In summary, the purpose statement provides that the purpose of the new Act is “to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals”.

The legislative ability to use biometrics (Part 2)

The new Act will enable the future collection and use of specified biometric information for identity verification purposes.  It includes the ability to:

• collect, store and use photographs, fingerprints and iris scans of foreign nationals and to verify their identity and check their character
• use photographs of New Zealand citizens to verify their identity and confirm their citizenship. 

The ability to share biometric information nationally and internationally in certain circumstances was enabled through the Supplementary Order Paper.  The changes to the biometric provisions were made to ensure New Zealand has up-to-date and internationally comparable measures to address immigration and identity fraud.

A new classified information system with special safeguards (Parts 2, 7)

The new Act will enable classified information to be used in immigration and refugee and protection decision making with special safeguards.  It can only be used where the Minister of Immigration (the Minister) agrees and the information relates to security or criminal conduct. 

The special safeguards to the classified information system are included to balance the right of the Government to use all available information to choose who may travel to, enter and stay in New Zealand and the rights of foreign nationals. 

Classified information has been rarely used in the immigration system to date.  The new Act will update the applicable provisions from the Immigration Act 1987.  The provisions in the Act do not herald the start of greater use of classified information.

A universal visa system (Part 3)

The new Act will establish a universal visa system that maintains flexibility in managing people’s travel to and stay in New Zealand.  It will remove distinctions between the categories of “visa”, “permit” and “exemption”, and use the single term “visa” to refer to the authority to travel to, enter and stay in New Zealand.

A universal visa system means that all foreign nationals will require a visa to be in New Zealand.  Visas can be granted or “deemed” to be granted to maintain flexibility in managing risk and the range of unique circumstances under which a foreign national may enter New Zealand.  For example, a visa may be deemed to be granted where a foreign national enters New Zealand territory on Antarctica.  This is because they may travel directly to Antarctica from another country.  Australia is another country that has a universal visa system. 

Interim visas (Part 3)

The new Act will introduce a new concept in allowing interim visas to be granted for the purpose of maintaining a foreign national’s lawful status in New Zealand where they have applied for a further visa and their application is being considered.  This is a positive change that should be of benefit to foreign nationals who wish to extend their stay in New Zealand.

A new refugee and protection system (Part 5)

A new refugee and protection decision making framework is created.  The new Act will incorporate into the legislation the United Nations 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees, and includes a procedure for determining New Zealand’s existing immigration-related obligations under the Convention Against Torture, and the International Covenant on Civil and Political Rights.

Some changes that were made to the refugee and protection provisions by way of the Supplementary Order Paper primarily focused on managing abuse of the asylum process.  The changes include:

• that where a foreign national creates the grounds for a refugee status claim in bad faith, their claim can be declined for consideration but that they may appeal.  This provision is based on current New Zealand case law
• an implied waiver of confidentiality in refugee and protection decisions where a refugee or protected person or claimant puts information about their case in the public realm
• that refugee and protection decisions can be released where it is in the public interest and is safe to do so.  This will ensure there is a lawful authority to respond to claimants who abuse the refugee process by publicising falsehoods.

A streamlined deportation process (Part 6)

The new Act will create a streamlined deportation process that balances efficiency with fairness.  The deportation process brings together numerous provisions in the Immigration Act 1987 regarding “removal”, “revocation”, and “deportation” in an ordered framework that sets out a person’s rights and obligations.

The deportation thresholds broadly reflect the status quo, with enhancements to ensure that they are up-to-date and enable New Zealand to remove people who do the wrong thing and do not comply with the immigration system or New Zealand law. 

With the exception of foreign nationals who are unlawfully in New Zealand, a key change is that, in most cases, the Act allows a person to remain lawfully in New Zealand while they appeal against their deportation liability.  This means that they can work or study (if allowed by the conditions of their visa) during that time. 

The Act will allow for liability for deportation to be cancelled or suspended at the discretion of the Minister, and the Immigration and Protection Tribunal can suspend the deportation liability of residents.  A suspension may be used where the Minister wants to put a foreign national who is liable for deportation on a form of good behaviour bond.

The Transport and Industrial Relations Committee recommended an amendment to allow the cancellation of a deportation order of a foreign national unlawfully in New Zealand.  This will facilitate the voluntary departure of foreign nationals by ensuring that any ban period does not apply to them. 

The ability to cancel a deportation order has some protections built around it so it does not become another avenue of appeal for foreign nationals seeking to defer their departure from New Zealand.

One change made by the Supplementary Order Paper was to provide that the Minister can order the early release from prison of any foreign national offender who is liable for deportation (not just resident offenders), having considered the safety of the community that the offender will be deported into. 

Where an offender has been sentenced to two or more years in prison, they may not be released for deportation until they have served the lesser of either a minimum of two years or one third of their sentence.

The requirement that an offender spend a minimum two years or one third of their sentence in prison in New Zealand is a clear signal about the desirability of offenders serving their sentences in all but exceptional circumstances, such as where:

• there are scarce flights available to deport an offender about to be released during a busy holiday period
• the offender has a serious medical condition and is being deported because of excessive cost to the health care system.

A single independent appeals tribunal (Part 7)

A new independent tribunal, the Immigration and Protection Tribunal, is to replace the four existing appeal bodies.  It means that the appeal process can be more streamlined than it is under the Immigration Act 1987.

The new Act will essentially maintain the existing rights to appeal.  Under the Immigration Act 1987, persons with more than one ground for appeal can undertake multiple appeals to the different appeal authorities.  Under the Act, a person will generally have a single appeal to the Immigration and Protection Tribunal.  Where they have more than one ground for appeal at any one time, for example, on facts and humanitarian grounds, both grounds must be lodged together.

In addition, new rights are included for protected persons under the Convention Against Torture and the International Covenant on Civil and Political Rights provisions.  There are also new appeal rights where claims are refused for consideration.

The Act has been drafted so that the Prime Minister can designate the department that will administer the Immigration and Protection Tribunal.  The former Government had decided the Ministry of Justice would administer the Immigration and Protection Tribunal in order for the Tribunal to be seen to be more independent from the Department of Labour (the Department) which is responsible for immigration decision making. 

More flexible compliance and information powers (Part 8)

The new Act will establish flexible compliance provisions.  Entry and inspection powers enable general compliance enforcement, as well as enforcement of employers’ and education providers’ immigration obligations.

It was identified that neither the Immigration Act 1987 nor the Bill included provisions that would fully enable the systematic verification of a foreign national’s identity and checking of their character.  It is also in the public interest that relevant information about a foreign national may be exchanged or disclosed in order to manage access to publicly-funded services and ensure that only those with entitlement access those services. 

With the changes suggested by way of the Supplementary Order Paper, the new Act will provide for information matching and sharing provisions that will enable foreign nationals’ (not citizens’) personal information, including their biometric information, to be checked with certain onshore and offshore agencies to manage:

• risks to the integrity of the immigration system
• risks to the safety and security of New Zealand
• publicly-funded services (such as health services).

A tiered detention and monitoring system (Part 9)

The new Act will provide for a tiered detention and monitoring system that includes a greater ability to use reporting and residence requirements instead of secure detention.  Greater discretion is also given to the courts in issuing warrants of commitment except where a foreign national is deliberately hindering their departure.  This means that a decision to detain or monitor a person for immigration reasons can be appropriately based on the level of risk they represent.

There is a general six-month limit on immigration detention except where a foreign national hinders their own departure.  Those who actively hinder their deportation from New Zealand compromise the integrity of the immigration system.  Their actions set a precedent to others that suggests, for example, if you refuse to sign travel documents for long enough, you will secure your release into the New Zealand community because the Government cannot deport you.  The detention provisions were strengthened by way of the Supplementary Order Paper so that these people cannot seek to be released from detention due to the length of time they have been detained. 

Incentives for third parties to comply with their obligations (Part 10)

The new Act will contain a range of offences and penalties aimed at actions that undermine the integrity of the immigration system.  Offences in the Act include offences by employers, education providers, and carriers.  These third parties are vital to the success of New Zealand’s immigration system, but their engagement comes with obligations, and increased penalties for non-compliance.

The Act changes the ‘reasonable excuse’ defence for employers who employ a foreign national without entitlement to work.  In the current economic climate, it will help ensure that only citizens and others with entitlement can work in New Zealand.  It also increases the penalties for education providers who fail to comply with their immigration obligations.

To help employers meet their obligations, the Act enables a special provision that lets immigration status information be shared with employers to come into effect early.  This is so the Department of Labour can work to develop an online system for employers to use to check a foreign national’s entitlement to work.

The Act creates an infringement system for airlines who fail to meet their immigration obligations.  The system will be comparable to that operated to good effect in Australia where airline compliance has increased.