REGULATORY IMPACT STATEMENT – IMMIGRATION ACT:
Statement of the Public Policy Objective
To develop a transparent, efficient and fair deportation framework that clearly
sets out a noncitizen’s rights and obligations.
Statement of Feasible Options
How deportation liability is triggered and how it can be cancelled
Status quo, Policy Problem and Magnitude: The Immigration Act 1987 (the
1987 Act) makes noncitizens who have overstayed liable for removal (unless
they appeal within 42 days of the expiry of their permit). No administrative or
court action is required to make them liable. In contrast, other deportation
processes require a ministerial order to initiate, for example in cases of residents
who are criminal offenders.
The requirement for ministerial involvement in deportation may not be necessary
where the grounds for deportation liability were clear in the statute and where
appeals were available. Requiring all decisions to be taken at the ministerial level
Preferred Option: Noncitizens would be liable for deportation when they come
within criteria specified in the legislation. There would be a delegable ministerial
power to intervene to cancel deportation liability, but the Minister of Immigration
(Minister) or delegated officer would not be compelled to consider or make any
Net Benefit of the Proposal: The proposal improves the deportation framework
by removing the compulsion for ministerial involvement in deportation decisions.
It reduces the chances for delay arising from challenges to the initial decision to
make a noncitizen liable for deportation. The retention of the ability of the
Minister to intervene provides an opportunity for deserving cases to be taken out
of the deportation process and would reinforce confidence in the system.
Greater clarity in the deportation framework would make it clearer to noncitizens
when they would be liable for deportation. It provides noncitizens a clear
pathway to a single independent appeal (where appropriate).
Status of noncitizens during deportation process
Status quo, Policy Problem and Magnitude: The 1987 Act provides for
residents to retain their status until they are finally required to leave New
Zealand after deportation or revocation proceedings. Temporary entrants may
have their permits revoked, and become unlawful for the duration of any appeals
Preferred Option: It is proposed that noncitizens should maintain lawful status
while in the deportation process, except for those who are liable for deportation
because their visas have expired. Noncitizens who held a valid temporary
entrant visa when deportation liability was triggered would be able to apply for
further visas of the same type in order to maintain their lawful status during any
Net Benefit of the Proposal: This proposal allows noncitizens to retain their
current status until deportation is confirmed. If deportation is not confirmed, the
noncitizen’s life will not have been disrupted more than is necessary.
Deportation liability criteria:
Unlawful presence in New Zealand
Status quo, Policy Problem and Magnitude: Ascertaining an applicant’s true
identity is a necessary foundation of the assessment of immigration applications.
Where a completely or partly fabricated identity is used to successfully gain a
visa, the 1987 Act provides for this to be dealt with as fraud, with the visa subject
to revocation. This means that noncitizens who should never have obtained a
visa are accorded a greater opportunity to appeal against deportation than
Preferred Option: Visas granted to a completely or partly fabricated identity
would be treated as though they had never been granted. The noncitizen would
be given 14 days period from the service of a deportation liability notice to
demonstrate that the false identity was, in fact, genuine. If the use of a false
identity is confirmed, the noncitizen would be deemed to have been unlawfully in
New Zealand from the date a visa was first granted to the false identity. For
temporary entrants, the 42 day period to lodge a humanitarian appeal with the
tribunal will have passed in many cases. The purported holders of resident or
permanent resident visas would be able to appeal to the tribunal on the facts.
Net Benefit of the Proposal: The proposal means that noncitizens who gain a
visa (through the use of a false identity) do not gain an advantage in the appeals
process. The proposal still allows for ministerial intervention to grant a new visa
in all cases.
Threat or risk to national or international security
Status quo, Policy Problem and Magnitude: The 1987 Act provides for
deportation, by Order in Council, for noncitizens who are a threat to national
security. The 1987 Act also provides for the deportation, by ministerial order, of
suspected terrorists threatening New Zealand. There is no clear rationale for
having distinct processes for those who threaten security and those who are
terrorists. Also, the interpretation of “threat” may not include where a noncitizen
is an integral part of a wider or international threat. These deportation provisions
are used infrequently, but have been used this year.
Preferred Option: It is proposed that noncitizens who are determined to be a
threat or a risk to national or international security could be deported by Order in
Council made by the GovernorGeneral.
Net Benefit of the Proposal: The preferred option is a strong power. It
simplifies the system by having only one decision making process. The
broadening of “threat to national security” to include “risk” would enhance the
government’s ability to respond to future security threats. Where deportation is
an option, the proposal makes it clear that the provision can be applied to those
who pose no direct and immediate threat of harm, but are an integral part of a
wider or international threat. The addition of the international dimension
enhances New Zealand’s response to threats to other states.
Status quo, Policy Problem and Magnitude: A resident may be deported
where there is clear evidence of immigration fraud, or where the person commits
a serious criminal offence after the grant of residence. From time to time
investigations relating to criminal activities the noncitizen was involved in prior
to residence being granted commence after the grant of residence. Unless the
noncitizen was under investigation at the time of their application, and they
knew this, there would have been no fraud committed. There are currently no
immigration consequences in such cases.
Preferred Option: Residents would be liable for deportation, within five years of
residence being granted, where new information, applicable at the time residence
was granted, indicates that the person would not have been granted residence if
that information been available at that time.
Net Benefit of the Proposal: Government and New Zealand society would
benefit by being able to deport noncitizens who committed serious criminal
offences where this information was not known at the time of the application, and
where extradition was not being sought by the home country. There would be a
cost to a small number of noncitizens who would not have been granted
residence if particular information had been available at the time residence was
granted, who face no immigration consequences under the 1987 Act but who may
be deported under this proposal.
Where a person who lost New Zealand citizenship and reverted to resident status
was liable for deportation as a resident
Status quo, Policy Problem and Magnitude: The situation of people who lose
citizenship varies according to whether they have retained residence status while
they have been New Zealand citizens. Where residence has been retained and
there are grounds to revoke it, a full revocation process must be completed,
including a reexamination of the facts that lead to the loss of citizenship. Where
the former citizen has not retained residence, they are likely to be in New
Zealand unlawfully and subject to removal. This inconsistency is unfair and
Preferred Option: It is proposed that New Zealand citizens would not hold visas,
but that when citizenship is lost the person would be deemed to hold a resident
visa. If the factual basis for the loss of citizenship arose from circumstances that
were in themselves deportation liability criteria, then liability would be triggered.
An appeal would be available on humanitarian grounds, but not on the facts,
which were reviewable during the citizenship deprivation or renunciation process.
The Minister could intervene to cancel liability at any time. If the loss of
citizenship did not involve facts that were grounds for deportation liability, then
no action would be taken.
Net Benefit of the Proposal: This proposal clarifies the immigration status of
the relatively few people who lose New Zealand citizenship each year. It allows
them to remain in New Zealand as residents unless they are liable for
deportation. Even then, they may appeal the liability. The proposal also reinforces
the integrity of New Zealand citizenship by allowing decisions on the loss of
citizenship to be made on the basis of the criteria relevant to that situation with
confidence that the grounds for subsequent immigration action are clear.
Offences warranting deportation
Status quo, Policy Problem and Magnitude: The 1987 Act allows for the
deportation of residents who have been convicted of offences of degrees of
seriousness. Both actual and possible sentences are used. The seriousness of the
offences that warrant deportation is stepped within two, five and ten year periods
from the grant of residence.
Period, from grant of residence, Status quo
during which offence committed
10 years Actual sentence of 5 years or more, or
indeterminate period capable of running
for 5 years or more.
Conviction for exploiting or knowingly
employing an unlawful worker.
5 years Actual sentence of 12 months or more,
or indeterminate period capable of
running for 12 months or more.
Conviction for two offences punishable
by imprisonment for 12 months or more
2 years or at anytime while Conviction punishable by imprisonment
in New Zealand temporarily for 3 months or more.
The closer the offence to the grant of residence, the less serious the offence
needs to be to warrant deportation. As the five and ten year steps are based on
actual sentences, sentencing decisions have been based on keeping a person out
of deportation liability, which undermines the current discretion of the Minister to
decide deportation. The immigration offences of employing and/or exploiting
illegal migrant workers are specified as applying during the full ten years.
Preferred Option: It is preferred to use only actual or potential sentences as a
measure for deportation liability. It is proposed that residents be liable for
· when convicted of an offence committed within 10 years of the grant of
residence where an actual sentence of 5 years or more, or indeterminate
period capable of running for 5 years or more is imposed
· when convicted of an offence committed within 5 years of the grant of
residence which is punishable by imprisonment for 24 months or more, or
· when convicted of an offence committed within 2 years of the grant of
residence, or while in New Zealand prior to that, which is punishable by
imprisonment for 3 months or more.
Net Benefit of the Proposal: The proposal will strengthen the government’s
decisionmaking ability by allowing early intervention for offending at a time
when the noncitizen’s links with New Zealand are likely to be still developing.
Using a possible rather than actual sentence gives the specialist tribunal the sole
role of assessing deportation appeals at this stage, rather than having these
matters intrude into sentencing decisions in the courts. Longer term residents will
benefit from the retention of the current provisions that would apply for the whole
ten year period. Shorter term residents will face stronger incentive to maintain
How deportation liability is communicated
Status quo, Policy Problem and Magnitude: The 1987 Act requires residence
deportation orders based on criminal offending to be made within six months of
sentence or conviction. This means that otherwise liable noncitizens can escape
deportation where interdepartmental information sharing falls down. This time
limit is not consistent with the proposed system that makes noncitizens liable
when they come within criteria specified in the Bill. As liability is triggered by the
statute and not by order, the proposed deportation system needs to provide for
communication of liability, in most cases.
Preferred Option: Noncitizens liable for deportation would be advised of their
liability by the service of a deportation liability notice (except for, as with the
status quo, overstayers and national security deportations). The notice would
advise the noncitizen of their deportation liability, any appeal rights, and time
limits, which would start with the service of the notice. Liability would endure for
ten years regardless of when the notice was served.
Net Benefit of the Proposal: This proposal would ensure that a noncitizen
liable for deportation would not escape the liability because of delays in serving
liability notices, thereby ensuring the effectiveness of the deportation system.
The rights of the noncitizen are protected because their appeal lodgement period
starts only when they are notified of this by the deportation liability notice.
Ability to suspend deportation liability
Status quo, Policy Problem and Magnitude: The current system requires
deportation to proceed or be cancelled. This reduces the ability of decision
makers to make responses that fit individual circumstances, with, for example, no
middle path between the serious consequences of deportation and imposing no
penalty at all.
Preferred Option: It is proposed to establish a delegable Ministerial power to
suspend deportation liability of residents and permanent residents for up to five
years (the tribunal would also have this power). The suspension would be subject
to good behaviour or other conditions, with deportation liability reactivated where
the conditions were not met and cancelled if they were. Noncitizens whose
deportation liability had been suspended would be able to appeal their
deportation liability to the tribunal. Citizenship or another visa type would not be
able to be granted during the suspension period.
Net Benefit of the Proposal: The proposal would benefit some noncitizens who
might otherwise be deported by giving them another chance to demonstrate good
behaviour and their suitability to remain in New Zealand. The ability to appeal to
the tribunal gives noncitizens the opportunity to seek to have their deportation
liability cleared entirely if they consider that they have a strong case. The
proposal gives the government flexibility in responding to individual
circumstances. The ability to make common sense exceptions is important to
maintaining confidence in a system that makes noncitizens liable for deportation
by the operation of the law.
Penalties after deportation
Status quo, Policy Problem and Magnitude: Removed overstayers are banned
for five years and deported former residents are banned permanently under the
1987 Act. These provisions provide a strong sanction against behaviour that
warrants deportation and some incentive for noncitizens not to overstay. The
single sanction available for overstayers does not provide for a graduated
response to take account of varying circumstances. The ban regime has a weak
spot in that attempts to reenter during the five year ban to not carry any
Preferred Option: It is proposed that the bans applying to noncitizens deported
after being in New Zealand unlawfully should be:
· None if departs without deportation order and pays own costs
· Two years, if deported after overstaying for one year or less
· Five years, if deported after overstaying for more than one year
· Five years if deported after overstaying on a second or subsequent
The Minister (and tribunal, when deciding appeals) could waive or reduce the
period of the ban. In addition, it is proposed that any attempt to reenter New
Zealand during the ban period should restart the period from the date of
Net Benefit of the Proposal: This approach provides for a graduated response
to overstaying, allowing individual circumstances to be taken into account. It may
increase the incentives for early voluntary departures. Should a person who is
banned arrive at the border and make a protection claim they would be refused
entry pending the determination of their protection claim.
Statement of Consultation Undertaken
Stakeholder Consultation: Slightly more submissions supported the proposal
for the provisions to trigger deportation liability than opposed. The main issues
were concerns that appeal rights may be reduced, placing the burden of rebutting
the deportation presumption on the noncitizens, that liability would need to be
communicated, and that the Minister would no longer be required to make
There was support at public meetings for the idea of maintaining lawful
immigration status during the deportation process. Submissions on the national
security deportation criterion considered it too vague and open to abuse, unless
clearly defined and lacking a clear decisionmaking process. Little comment was
received on the levels of offending that could trigger deportation liability for a
resident. One submission argued that a high degree of transparency in criteria
was required, and that, therefore, criteria should be outlined in legislation.
A number of submitters considered that noncitizens liable for deportation should
be advised of this so that they could appeal. There was strong support for
graduated bans on returning as a penalty after deportation.
Government Departments/Agencies Consultation: No significant concerns
have been raised by other agencies consulted on these proposals.