The (future) collection, storage and use of biometric information

As per the November 2006 CBC decisions, the Bill contains provisions that will require biometric information, including photographs, fingerprints and iris scans, from non-citizens during their engagement in the immigration system. It will also contain a provision that will require photographic biometric information from citizens seeking to enter New Zealand at the border. This will allow comparison with the biometric information contained in the New Zealand passport, or with Department of Internal Affairs' (DIA) databases, to determine whether the person is in fact a New Zealand citizen.

The Bill sets out that these provisions will come into force by Order in Council (OiC) once implementation details have been developed and agreed by Cabinet. It is anticipated that this will happen after the rest of the Bill is brought into force. The OiC process allows for implementation details to be worked through with key stakeholders such as the Ministry of Justice (Justice), DIA, and the Office of the Privacy Commissioner (OPC).

Identifying people is a crucial element in facilitating the entry of migrants and visitors to New Zealand and managing the potential risk of identity fraud. Improvements in document forgery and increasing identity theft has led to more opportunities for individuals or organised groups to circumvent New Zealand's border controls. For example, the Department has identified many cases of individuals lodging multiple refugee claims under different identities and non-citizens who have been removed from New Zealand returning under new false identities.

CBC agreed to the biometric proposals as traditional reliance on paper-based identity documents, and visual photo to face checks, is becoming increasingly inadequate to manage the risks of identity fraud to New Zealand. The Department cannot currently ensure that every non-citizen entering New Zealand with a visa is the same person that applied for that visa. Or, that a non-citizen previously removed or deported from New Zealand and who seeks to re-enter under a new fraudulent identity, is detected. Investigations may reveal identity fraud, but these investigations are time and resource intensive.

During the public consultation phase, submitters on the biometric proposals were predominantly positive. Some concern was expressed, particularly by refugee support organisations, around the use of biometric information, for example, that it might be shared with overseas organisations (this is not a feature of the Bill).

The Privacy Commissioner (the Commissioner) has noted that the Bill creates precedents for the compulsory collection of biometric information - this is consistent with the November 2006 CBC decisions. The Commissioner has indicated a preference for the Bill to include a threshold before Immigration Officers can exercise a discretion to request such information from individuals. Her detailed comments are noted in the consultation section beginning at paragraph 67.

The purposes for the collection, storage and use have been clearly defined in the Bill.

The use of classified information

The Bill has been designed to give greater ability to use classified information in both immigration and refugee and protection decision-making^[2] while creating natural justice protections for the applicant/appellant. It ensures that where classified information has been used, there is a robust process of independent scrutiny.

A balance has been sought between the rights of the Government to use and protect classified information where it is in the best interests of New Zealand, and the rights of the non-citizen. This will enable fair, fast and firm decision-making with safeguards where classified information is used. The key safeguards include:

1. the decision-maker must release a summary of the classified information to the non-citizen during the potential prejudicial information (PPI) process except to the extent that a summary would be likely to prejudice the interests referred to in the definition of classified information
2. the non-citizen must be informed that a decision has been made on the basis of classified information, and the broad reasons for the decision
3. the non-citizen must be advised of any appeal rights that are available and the availability of a special advocate who may access the classified information to represent them during any appeal
4. where the non-citizen appeals to the Immigration and Protection Tribunal (the Tribunal), the appeal may be heard by up to three specially warranted and security briefed District Court Judges (DCJ)
5. during any appeal the DCJs can assess both the immigration and/or refugee and protection decision made, along with the use and veracity of the classified information used in the decision-making process, and
6. the new legislation provides for a clearly and closely prescribed system for judicial review and appeal on points of law to the courts, where specially warranted judges may access any classified information used in the decision-making process and the non-citizen can be represented by their Special Advocate.

The Bill provides for an expanded use of classified information from the 1987 Act. This is because there are a small number of cases each year where this information could give clear and reliable reasons for making an immigration and/or refugee and protection decision, but where the high security threshold set by Part 4A of the 1987 Act is not met.

The Bill incorporates all the advantages of Part 4A, and seeks to overcome its disadvantages, through being a clearly and closely prescribed system. As agreed in May 2007 by Cabinet, Part 4A will be repealed along with the 1987 Act on enactment of the Bill.

Public consultation on the use of classified information received submissions from a wide range of stakeholders. Individual submitters tended to support the use of classified information, while organisations tended to oppose it. Many submitters suggested safeguards for use where classified information was used. Many of these safeguards have been incorporated into the Bill.

Of those who opposed the use of classified information, many indicated strong opposition on the grounds that it would contravene a non-citizen's right to a fair hearing, and the principles of administrative and natural justice. These submitters were of the view that all PPI should be fully disclosed to all applicants and appellants if it is to be used in decision-making.

The enhanced powers of entry and inspection, and entry and search

The Bill proposes a number of "entry and inspection" powers that allow Immigration Officers to enter premises and require the provision of documentation that allows the officer to investigate compliance with immigration obligations. This includes monitoring of the employers and employees, education providers and students, and enables the location of people unlawfully present in New Zealand or who are liable for deportation. The Bill also proposes a number of "entry and search" powers that allow officers to enter border areas for immigration purposes to locate people, detect offences, undertake immigration duties and search for travel and identity documentation.

The Bill sets out that, where these powers are new for Immigration Officers, they will not be available for their use until implementation details have been developed and agreed by Cabinet. As with the biometric provisions, they will come into force by OiC.

The entry and inspection, and entry and search powers in the Bill are required to ensure that those who benefit from the immigration system also comply with their obligations. For example, non-citizens are required to be in New Zealand lawfully and the Department must be able to locate unlawful non-citizens to enforce their obligation to leave (or to modify their status to make them lawful).

The Department expects that privacy advocates will be interested in increased powers of entry. Many of the entry and inspection powers are not intrusive, allowing officers to enter only at certain times, and without force, to request certain documents. There is only a limited expansion of the entry and inspection powers in the Bill.

The entry and search powers in the Bill enable the search of border areas for immigration purposes and enable the management of risk in the immigration system. Border areas are a heavily regulated environment designed so that a range of risks to New Zealand can be managed effectively by a number of government agencies with responsibilities in this area.

There were mixed submissions on entry and inspection, and entry and search provisions during the public consultation process. Most submitters supported the expansion to the powers of entry and inspection. There was some confusion around the current role of Immigration Officers and the entry and search provisions. Submitters did not understand what functions Immigration Officers currently had, compared with those which would be expanded.

A key point raised in the consultation process was that where powers of search and entry were exercised by Immigration Officers, they should be appropriately trained and have an awareness of human rights.

The four hour power of immigration detention

The Bill incorporates a statutory detention power for specially trained and designated Immigration Officers (who may also be Customs Officers) to detain non-citizens who are liable for immigration detention for a four hour period. The four hour period is limited to where an Immigration Officer is seeking the assistance of the New Zealand Police (Police) to arrest and detain the non-citizen, where the Immigration Officer is deporting the non-citizen, or seeking their immigration detention under a warrant of commitment (warrant).

There are a range of situations where a non-citizen may be detained for immigration purposes. Requiring the Police to give effect to immigration detention in all situations limits the ability of the Department to fully and efficiently undertake its role in managing the immigration system, for example:

1. When a non-citizen at the airport is refused entry, an Immigration Officer must call for Police support if detention is required even for a short period prior to their departure being facilitated.
2. Where a non-citizen is in New Zealand unlawfully and located during the course of regular departmental business, the Department cannot compel them to remain at a place while the Police arrive to detain them, nor can the Department take them to the Police.
3. When a non-citizen is released from prison for the purposes of deportation, the Police must always deport them even if they are generally compliant.

It is intended that the four hour power could also enable designated officers to act as escorts where a non-citizen was being transferred from a place of detention to a warrant hearing. This would assist the Department in managing non-citizens separately from remand or criminal prisoners if required.

The four hour detention provision will be activated through an OiC. Once again, this will enable Cabinet to be assured that appropriate training is provided to Immigration Officers and appropriate operational instructions are developed to guide the use of the four hour power. Training and operational issues were raised during the public consultation process. Concern was also expressed during consultation that all Immigration Officers would be delegated this power - this is not the case.

Changes to the "reasonable excuse" for employers

The Bill does not propose any change to the existing obligation for employers to not, either knowingly or without reasonable excuse, employ (or maintain employment of) a non-citizen who is not entitled to work. The change in the Bill relates to what would constitute a defence against possible prosecution in this area.

In November 2006, CBC agreed that holding an Inland Revenue Department (IRD) tax code declaration IR330 form would no longer constitute a reasonable excuse. Rather, an employer would have a reasonable excuse for employing a non-citizen without entitlement to work if they:

1. do not know that the non-citizen is not entitled, and
2. had taken reasonable steps to determine the non-citizen's entitlement.

"Reasonable steps" has been codified in the Bill as "reasonable precautions and due diligence". It will be a defence against the failure to comply with their obligations if an employer can show that they have taken reasonable precautions and exercised due diligence in the employment process.

This proposed change to the reasonable excuse defence is necessary because the tax code declaration has been a major impediment to pursuing prosecutions. Employers currently have little incentive to actively comply with their obligation to only employ those lawfully entitled to work. Unlawful workers undermine the immigration system and have the potential to undermine the pay and conditions of all workers in New Zealand.

In addition to the inability to pursue prosecutions because of the tax code declaration, there are other problems associated with the use of the IR330 form to determine a non-citizen's entitlement to work. The tax code declaration is a self-declaration. The Department's perspective is that self-declarations (without any requirement to provide documentary evidence in support of the declaration) are too low a threshold for establishing entitlement to work. A further concern is that the declaration is not responsive to changes in immigration status. A declaration of entitlement could be correct on the day it is made, and false the following day.

There has been considerable interest in the changes proposed for the reasonable excuse defence. The Department has been working with key stakeholders (Business New Zealand and the Council of Trade Unions) to explore possible guidance for employers on what could constitute 'reasonable steps' in this context. The Council of Trade Unions is supportive of the decision to remove the tax code declaration, but have some concerns about the practical implications of the 'reasonable steps' approach. Business New Zealand is not supportive of removing the tax code declaration and feel that the IRD should make the process more robust. They believe that the proposed changes will place compliance costs on employers.

Codification of the CAT and ICCPR

In November 2006, CBC agreed to codify the CAT and ICCPR, and legislate the ability for a non-citizen to be protected in New Zealand where:

1. as a result of deportation it is more likely than not that the person would be personally subjected to torture within the meaning of the CAT, or
2. as a result of deportation it is more likely than not that the person would personally be subjected to arbitrary deprivation of life or cruel, inhuman or degrading treatment or punishment if:
   1. the person is unable or, because of the risk, unwilling to avail themselves of the protection of their country of nationality or former habitual residence
   2. the risk would be faced by the person in every part of their country and is not faced generally by other individuals in or from that country
   3. the risk is not inherent in or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
   4. the risk is not caused by the inability of that country to provide adequate health or medical care.

Advice on this codification, from Justice and the Ministry or Foreign Affairs (MFAT), received during drafting and consultation on the Bill is that the words “more likely than not” may be seen to narrow the obligations.  These words have been changed in the Bill to “there are substantial grounds for believing”.

Justice notes that the wording proposed for introduction is likely to be “read down” by the courts, meaning that they would interpret the provision so as not to derogate from New Zealand’s international obligations.  Nevertheless, there may be a perception that New Zealand is attempting to narrow the CAT and ICCPR tests which may cause uncertainty and criticism.

National and international jurisprudence needs to be further reviewed and closely considered to ensure that the words contained in the Bill are appropriate. The Department, Justice and MFAT have agreed to continue work in this area during the Select Committee phase to ensure that the codification of the CAT and ICCPR is appropriate. Advice on the appropriate codification of these obligations will be provided to the Select Committee.