Monday, January 06, 2014

Surely this is illegal?

Just before the holidays, Immigration released its Year at the Border 2012/13 report [PDF], a compilation of statistics and stories designed to persuade us that they're doing a good job of keeping the Teeming Foreign Hordes (that's sarcasm, for morons) at bay. One of the statistics to make the news was that 135 New Zealanders had been denied permission to fly to New Zealand because they did not have a valid passport.

This seems to be unlawful. Section 13 of the Immigration Act 2009 is pretty clear: "New Zealand citizens may enter and be in New Zealand at any time". While they must prove their citizenship and establish their identity by complying with border requirements",

Nothing in this Act (other than subsection (2)) abrogates the right [of NZ citizens to enter New Zealand], and... no provision of this Act that is inconsistent with that right applies to a New Zealand citizen
Immigration is clearly satisfied that these people are New Zealand citizens, otherwise they would not report them as such (most are likely to be people whose NZ passports expired while travelling). While they are not denying them entry at the border (which would clearly be illegal), the refusal of permission to fly amounts to the same thing in practice and therefore seems to contravene s13(3)(a).

So what's the legal cover? Parliament clearly did not intend travel permission to be denied to New Zealanders, and reiterated that in the relevant clause (Section 97). But in doing so, they didn't contemplate that New Zealanders would seek to return home without passports. Immigration seems to be relying on this lacuna to deny them their practical right to enter. And that is simply wrong.

(At this stage its worth noting that while the Act enumerates various classes of travel documents for New Zealand citizens, it doesn't do that for permanent residents, who can never be refused permission to board an aircraft to New Zealand regardless of what documentation they hold, if any. Surely New Zealand citizens should enjoy the same right?)

Meanwhile, I'm wondering: is this how the government intends to "block" its supposed kiwis fighting in Syria? By cancelling their passports for "national security" reasons and then using that fact to effectively exile them from home? I think some MPs need to ask some questions about this.