Wrong, at every level

We all hate Australia for its policy of jailing refugees as a "disincentive" for people to try and escape torture and persecution. But New Zealand does this too, on a much lesser scale. last year, the government finally ordered a review of this disgusting practice. Today, that review reported back, finding that jailing refugees is "wrong, at every level":

My conclusion is that while very short term detention of some arrivals who claim refugee status at the border may be justified (though the current practice of how this is done must change), the practice of long term detention of refugee claimants in Corrections facilities is wrong, at every level. It raises serious issues of non-compliance with New Zealand’s international and domestic human rights obligations. It is also inhumane and contrary to our society’s core values to treat such vulnerable people in this manner, and while a form of long term detention might in extraordinary circumstances be necessary for public safety or national security, the current rate and form of detention is not justifiable on any basis.

They recommend a law change to effectively end refugee detention except in exceptional circumstances, and to significantly increase judicial oversight when it is used. Reviews will be more frequent, and rather than being the current rubberstamp process, will require the government to prove both a need for detention and that they have taken all reasonable steps to enable a release on conditions every time. Detention in Corrections facilities - sticking people in jail and treating them like criminals - will be prohibited. Its an explicit repudiation of Labour's 2006 proposals (which were eventually enacted as the Immigration Act 2009 with Labour support), and of Immigration's general punitive approach.

According to Associate Immigration Minister Phil Twyford, the government accepts the findings. Hopefully they'll prioritise the necessary legislation, rather than dragging their feet on it.

Yadegary wins again

The Court of Appeal has dismissed the government's appeal against the High Court's decision to free Thomas Yadegary, with two of the three judges agreeing that prolonged imprisonment with no real prospect of release constituted "exceptional circumstances" under the law. Reading the decision [PDF] reveals just how exceptional and disproportionate Yadegary's imprisonment was: despite not having been charged, let alone convicted of a crime, he has served more time than most of those convicted of a violent offence. The average sentence for grievous assault or robbery is 24.1 months, and the average for indecent assault is 18.2. Yadegary spent 29 months in prison. Its worse when you remember that actual time served is usually between one-third and two-thirds of the sentence; once this is taken into account, Yadegary's imprisonment is up there with that of people convicted of kidnapping or attempted sexual violation. And of course its vastly higher than that handed out for any contempt of court, or for any other offence against the administration of justice.

What's really disturbing is that the government didn't think this was "exceptional", and that while of course they didn't mean for Yadegary to be imprisoned indefinitely, they nonetheless felt they should be allowed to. They even had the gall to argue that he wanted to be imprisoned, and that they wanted nothing more than to release him. Fortunately the judges treated these arguments with the utter contempt they deserved.

But what's most disturbing is that the government's new Immigration Bill includes a clause forbidding bail to any immigration detainee, and stating that the length of imprisonment cannot be considered an "exceptional circumstance" in deciding upon release. So, while disclaiming indefinite detention, they are seeking to put in place the very legal mechanisms to allow it in practice. Yet another example of how our "left-wing" government is simply two-faced on human rights.

Immigration Bill: reported back

The Transport and Industrial Relations Committee has reported back [PDF; large] on the government's Immigration Bill. And to be fair, they have improved it in at least one area: the torture clause (which would have required those claiming protection under the Convention Against Torture to prove that they faced greater risk than usual in their country, thus making it far easier to deport people to torture) is gone, replaced with clauses which more accurately reflect New Zealand's human rights obligations. Unfortunately, the rest of the bill remains virtually unchanged, and in some cases has been made actively worse:

• It still allows the use of secret evidence in immigration decisions. Such evidence must now be "balanced", and include any information which might help the client, but as there is no effective way of policing it, the requirement is effectively a joke. Summaries must now be given, but they're a joke too. And if information cannot be summarised, it cannot (officially) be relied upon - but that doesn't stop it from effectively poisoning the well against a client, causing the Minister to view other evidence in a different light. None of these "safeguards" apply if the decision is discretionary, of course - and one of the "features" of the new bill is that it has significantly increased the number of such decisions.
• The bill retains special advocates as a "safeguard" to represent clients in cases where classified information is used. However, they are still forbidden from talking to their clients after they have learned what the government wants to hide - a fact which prevents them from any effective challenge. They are a fig leaf for unfairness, nothing more.
• The blanket ban on entry to someone deported from or refused entry to another country (for whatever reason, good, bad, or stupid) remains unchanged.
• There is now a blanket ban on the courts granting bail to immigration detainees, to prevent them from "undermining" the law by applying the Bill of Rights Act. This means there is no effective oversight on the discretion of immigration officers to order detention.
• The security clause is retained, allowing any non-citizen to be arbitrarily arrested and indefinitely detained on the (not effectively reviewable) decision of an immigration or police officer that they are a "risk to security" - even if they have lived here for decades.
• The current system of indefinite detention is retained, with clauses added again to prevent the courts from "undermining" it by applying the BORA. There is now a presumption that detention will go on forever. And courts must still regard all classified information as accurate when deciding on detention, no matter how transparently false it is.

Basically, the bill has not been changed in any substantive way since its first reading, and as such, it is unsalvageable. It must be defeated. Please write to your MP today.

(Gordon Campbell has more here)

Immigration Bill: not looking good

The Immigration Bill was reported back from select committee today. Unfortunately, it hasn't yet appeared on the parliamentary website, but from Keith Locke's comments, it doesn't sound good:

"Too many decisions will be made on information kept secret from those affected," Mr Locke, the Green Party's Immigration Spokesperson says.

"Fourteen state agencies, from the Department of Corrections to the Ministry of Fisheries, will now be able to define information as 'classified' and not to be seen by the affected person.

"While summaries of secret allegations will generally be available, the agency producing them will be tempted to leave out anything which doesn't favour its own case.

"Special Advocates can be appointed but will be of limited usefulness to the affected people. They are not even trusted to talk to those they are advocating for, after they have seen any classified information.

And as if that's not bad enough, the committee has also moved to plug the "loophole" which has seen immigration detainees released from indefinite detention, by inserting an amendment that the length of detention cannot be considered a "special circumstance" in a bail application. Which means that when the government locks you up forever, you stay locked up forever, with none of this messy judicial oversight. Just like Guantanamo Bay...

This bill has to be defeated. You can start by signing the petition here.

The Immigration Bill: it affects you

The Immigration Bill doesn't matter because it only affects foreigners, right? Wrong. The bill will affect thousands of kiwis, and people we think of as kiwis, who have lived here in some cases for decades. How? One example was given by Steve on The Standard - his partner, an Estonian, was once denied entry to Sweden due to a misunderstanding over transit visas. Later, she immigrated to New Zealand. Under the Immigration Bill, she would never have been allowed into this country. "So what", you ask? Well, consider the number of kiwis who meet their partners on their OE. Now consider what the combination of ordinary bureaucratic fallibility (and it happens) and an inflexible and punitive law means for their relationships. Few people check out their partner's complete travel history before shacking up - but under the Immigration Bill, people will be forced to choose between their family here and their new family overseas. And that's just wrong.

Or a second example: we all have family, and in the case of many Pakeha New Zealanders, members of that family came from overseas in the relatively recent past. They may have come from the UK or another Commonwealth country, back when there was a de facto "whites only" immigration policy and entry was easy for "Commonwealth citizens". Or they may have come from Australia more recently, under the scheme which allows freedom of travel and residency between the two nations. Either way, they could have lived here for decades, paid taxes, voted, raised kids and grandkids and contributed to the community. But unless they normalised their status - and few British migrants, and even fewer Australians, bothered to do so - they are not citizens, but permanent residents. And that means they can be arbitrarily arrested and indefinitely detained by any immigration official or police officer, or deported back to a "home" they have not seen for half a century. Whichever way you look at it, that's just wrong; no-one should be subjected to arbitrary arrest and indefinite detention, and the idea of being able to deport long-term residents, kiwis in every way bar the paperwork, is deeply abhorrent. But the bill will allow it. While the government will no doubt argue that "the innocent have nothing to fear", mistakes happen. And with the powers granted by this bill, the consequences of those mistakes are vastly magnified.

This bill doesn't just affect foreigners. It affects kiwis as well. Most of us probably know someone who could fit either of the above scenarios. If you do, then sign the petition, and let the PM know what you think of her law.

Stop the Immigration Bill

It looks like I'm not the only person outraged by the government's Immigration Bill. Following the discussion on The Standard, T-Rex has set up a website, sorted out a petition, and crufted together a short video. So, read, sign, and watch, and then take action by emailing Helen Clark, John Key, or Clayton Cosgrove today.

For more information on the bill, start reading here.

The HRC on the Immigration Bill

For those concerned about the government's Immigration Bill, here's some more to chew over: the Human Rights Commission's submission on the bill [doc]. In it they express serious concerns about the use of classified information, special advocates, the possibility of deportation to torture, the stringency of humanitarian exemptions (which seem, as usual, to be an effort to weasel out of our obligations under the Refugee Convention), the deportation of permanent residents and the blanket prohibition on entry for anyone ever deported from another country (if you need an example as for why this is a bad idea, try Harmeet Sooden; if he'd been victimised by Israel for his beliefs before trying to move to New Zealand, then under the bill he would never have been allowed to come here). The HRC was particularly scathing of the classified information provisions, which "will have the effect of shrouding the decision-making process in secrecy and subverting public sector accountability", and of the special advocate system, which they denounced as "kafkaesque" - pretty strong words for a government body.

Fortunately, select committees tend to pay attention to the HRC, so there's a good chance that some of these problems will be fixed. But if not, then we're going to have to gear up to fight the bill when it comes back to the House in a couple of weeks.

The Immigration Bill violates the Convention Against Torture

On Election08, Scoop's Gordon Campbell takes issue with the government's Immigration Bill. I've spent a bit of time analysing this particular steaming pile of shit over the past few years, uncovering various delightful clauses which allowed arbitary arrest and indefinite detention, the assertion of truth through secrecy, and allowing them to repeat all the mistakes they made in the Ahmed Zaoui case, such as the use of special advocates and secret justice - moves which have been found to violate human rights in overseas jurisdictions. But Campbell has found something new, something which makes the bill far worse than I thought: while the bill purportedly supports the non-refoulement provisions of the Convention Against Torture, it in fact pisses all over them:

In a welcome move, the Immigration Bill does enshrine various UN conventions – including the Convention Against Torture - in our domestic law. However, in my earlier post, I outlined how the Immigration Bill violates key provisions of that same UN Convention Against Torture – by, for instance requiring ( see clause 122b ) an asylum seeker to prove they would face a worse risk of torture if returned home, than would be usual in their country.

(Emphasis added).

As Campbell points out, this means that the law allows people to be returned to torture and persecution, provided that they're not being tortured or persecuted any more than anyone else in whatever hellhole they come from. This is an express violation of the Convention Against Torture, which states (pretty clearly IMHO):

No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

How that danger is to be assessed is defined in the Committee Against Torture's General Comment No. 01: Implementation of article 3 of the Convention in the context of article 22, and its pretty strict. Claimants must establish they are at risk of being tortured, that they have substantial grounds for that belief, and that the danger is "personal and present". But contrary to the bill, "a consistent pattern of gross, flagrant or mass violations of human rights" is a reason to let someone stay, not a reason to kick them out. The CAT imposes a duty to protect people from torture - not to protect them only from "particularly bad" torture, or from being "personally victimised" by torture, but from any torture at all. And I'd expect any New Zealand government of any stripe to support that obligation.

The Committee also had a brief comment on the idea of sending claimants to "safe" third-party countries, a practice advocated in the case of Zaoui and implemented in the bill:

The Committee is of the view that the phrase "another State" in article 3 refers to the State to which the individual concerned is being expelled, returned or extradited, as well as to any State to which the author may subsequently be expelled, returned or extradited.

As Campbell points out, there's now plenty of precedent that "diplomatic assurances" not to torture or deport to torture can not be trusted. And yet here we are, trying to hide behind them, so we can wash our hands of people who need our help. It's disgusting, a betrayal of our basic values of decency and a fair go. But its what happens when you let immigration officials interested primarily in finding reasons to keep people out write human rights policy.

(There's more on the subject at Contradiction and The Standard)

"What I tell you three times is true"

Today, the US Court of Appeals released its written decision in the case of a Uighur detainee in Guantanamo Bay, in which it criticised the US government for apparently believing that whatever it said three times in secret documents was true.

Three times? If the New Zealand government gets its way on the new Immigration Bill, it will only have to say something once in order for the courts to be forced to treat it as accurate. As for whether it really is accurate, well, one of the benefits of secrecy is that the people you're slandering never get to properly check...

Immigration Bill: arbitrary arrest, indefinite detention

So far, New Zealand has avoided much of the madness of George Bush's "war on terror". Other countries have significantly restricted freedoms and violated human rights, subjecting suspected terrorists to control orders and indefinite detention, and even torture. We haven't. But the government's new Immigration Bill will change that, at least as far as visitors and immigrants are concerned. Buried in there among the arrest powers (most of which are aimed at enforcing deportations) is a clause which allows the arrest of anyone who is

on reasonable grounds, suspected by an immigration officer or a member of the police to constitute a threat or risk to security.

Once arrested, they can then be detained indefinitely under a warrant of commitment, or deported without any proper judicial process, all on the basis of secret evidence they are forbidden from effectively challenging.

The breadth of this clause is astounding. This is not about new arrivals and people who turn up at the airport with a bad security record. It applies to anyone. Tourists, visitors, students, even permanent residents. People who have lived here for years, who can work, receive superannuation, and vote, will be subject to arbitrary arrest and detention. All those Australian and British citizens who came here years ago but never bothered to apply for citizenship (because as de facto citizens it would make no difference to their lives) - people who are New Zealanders in every sense of the world, despite their lack of paperwork - will likewise be subject to arbitrary arrest and detention.

The potential for abuse here is astounding. While current law allows police to arrest on suspicion, it must be suspicion of having committed a particular offence. Removing that and replacing it with a vaguely-defined criteria of being a "risk to security" is simply asking for police and immigration officers to enforce their prejudices rather than the law. We've also seen in recent years several cases of people being victimised by unfounded allegations of terrorism made through MPs or bottom-feeding media outlets - the latest apparently being the result of some sort of employment dispute. Under this law, those people could very well have ended up being arbitrarily deported or in prison.

The clause is also likely to fall foul of the BORA's affirmation of freedom from discrimination, as it clearly discriminates on the basis of national origin (prohibited by s21 (g) of the Human Rights Act). Now, in a sense immigration law is all about discriminating on the basis of national origin - but it's supposed to be about who is allowed into the country, not whether they are equal before the law and enjoy basic human rights while they are here. It was on that basis that the UK House of Lords found a system allowing for the indefinite detention of foreigners - but not British citizens - suspected of terrorism to be unlawful back in 2004. In New Zealand, our Bill of Rights Act affirms that the right to liberty, the freedom not to be arbitrarily arrested or detained, applies to everyone, not just citizens. And from a moral perspective, if we wouldn't tolerate this sort of treatment for New Zealand citizens, we should not tolerate it for permanent residents or visitors either.

The proper way of dealing with threats to security is prosecution. This allows the evidence to be fully tested before a jury, and ensures that the government actually has to prove its case. The proposed changes in the Immigration Bill would remove that vital safeguard, and allow the government to inflict significant punishment having convinced only itself. And that is not something any of us should be happy with.

Submissions extended

The Transport and Industrial Relations Committee has extended the deadline for submissions on the Immigration Bill from October 12 to November 2. So, if you haven't already, submit! This is an important bill, which goes well beyond a simple tidy-up and entrenches many of the most objectionable features of the Zaoui case in law. If you want a humane immigration system (one which makes it possible for kiwis who meet people overseas to live here with their partners, for example), then you might want to express your views.

Submit!

The Transport and Industrial Relations Committee has called for submissions on the Immigration Bill. Two copies, by Friday, 12 October 2007, to

Transport and Industrial Relations Secretariat
Parliament Buildings
Wellington

The bill is basically a wish-list for officials, which massively increases powers of detention while reducing appeals and judicial oversight. It would also allow the routine use of classified evidence in immigration decisions (while declaring it true in some cases), thus replicating and normalising one of the worst aspects of the Zaoui case. It would be nice if we could get some of the more egregious features fixed by the committee.

Making a submission is not difficult - it can be as simple as writing a letter saying "I support/oppose the bill" and giving reasons why. If you're not sure, check out the Clerk's online guide here.

Immigration Bill: truth through secrecy

One of the most egregious features of the government's new Immigration Bill is that it would massively increase the scope for the use of classified information, allowing it to be used in any immigration decision and essentially making its use routine. This is bad enough - the use of secret "evidence" kept hidden from an applicant violates the right to natural justice and is a recipe for official abuse - but reading through the bill last night, I discovered that its worse. The decisions classified information can be used in include those on warrants of commitment allowing potential migrants and deportees to be detained. When classified information is used, the decision is automatically escalated to the High Court. However, the section (s289) on how the High Court must handle such decisions includes the following rather Orwellian clause:

(2) In determinining the application [for a warrant of commitment]...

(b) it is not the role of the nominated Judge to determine the matters described in section 217 (1); and

(c) the classified information must be treated as accurate

(Emphasis added; s217(1) states that in proceedings involving classified information, the new Immigration and Protection Tribunal must decide whether the classified information is relevant and credible, and whether it actually needs to be secret. Clause 289 (2) (c) obviously overrides this).

So, according to the bill, if it is secret, it is true, at least when it comes to decisions on whether to keep people in prison. And it is easy to see how this clause will be abused. An important consideration in deciding whether to issue a warrant of commitment under the new bill is whether the subject is likely to make themselves available for deportation in the future - those deemed likely to may instead be released on conditions rather than being imprisoned. If Immigration alleges that someone is a flight risk, then that allegation will be decided by the judge. But if it is alleged secretly, not only must the allegation be kept secret from the subject, but it must also be regarded as true. At this stage, it is worth pointing out that "classified information" can come from any government agency, including Immigration, so Immigration officials have a perfect power to have people locked up indefinitely on secret "evidence", the accuracy of which is forbidden from being assessed. This makes an absolute mockery of the right to natural justice, and indeed of any notion of independent judicial oversight; we might as well just remove the judiciary from the process entirely and put it directly in the hands of immigration officials.

As for people who think Immigration can be trusted not to abuse this power, it's worth remembering that they are the deparment which lies in unison, and misleads the Ombudsman. I don't think they'll have any compunction about classifying ordinary allegations and evidence for which there is no need for secrecy in order to achieve a desired outcome and bypass judicial oversight.

Immigration bill: first impressions

Last year, the government conducted a review of the Immigration Act, with the aim of eroding independent oversight of immigration decisions streamlining administration. On Tuesday, the resulting Immigration Bill was introduced to the House. The bill does contain a number of positive features, most importantly the full incorporation of the non-refoulement provisions of the Convention Against Torture and of Articles 6 and 7 of the ICCPR into New Zealand law. Against that, the bill gives the Department of Immigration pretty much everything it wanted. Decisionmaking power is shifted into the hands of faceless officials, appeal rights are reduced, and bureaucratic hurdles are imposed to prevent challenges. The troublesome Refugee Status Appeals Authority, regarded as one of the best decisionmaking bodies in the world in its area, will be disestablished and its jurisdiction transferred to a new single Immigration and Protection Tribunal. Powers of detention are massively increased, and judicial oversight reduced. Oh, and New Zealand citizens will now be biometrically scanned at the border.

The worst feature however is the provisions for the use of classified information. The use of secret "evidence" is one of the most egregious features of the Ahmed Zaoui case, and contrary to the headlines, its use will become routine. Rather than being limited only to those subject to a security risk certificate, it can be used in any immigration decision, and the information can come from any government agency - including Immigration. Such "evidence" will not need to be shared with a potential migrant, even if a judge says that the secrecy is unwarranted, and the legislation seems guaranteed to make this gross violation of natural justice a regular feature of our immigration system, in the process making the department even less accountable than it is now.

Again, I'm left wondering why a Labour government, which supposedly has a commitment to justice, fairness and human rights, is promoting such vile legislation. And again, I'm wondering what the point of struggling to elect them is if they're simply going to do something like this. This bill makes things crystal clear: Labour needs a strong left-wing coalition partner to act as their moral compass - and without such a coalition partner, they're not worth having at all.

Even less impressed

Six months ago, the government launched a review of the Immigration Act. I was not impressed with the proposals in the discussion document, and I am even less impressed with the government's decisions. Pretty much everything you need to know about it can be surmised from New Zealand First's reaction of calling it "a step in the right direction". While there is some good news, the control-freaks at Immigration got almost everything on their wishlist. And this will make our immigration system more vicious, more unfair, and more arbitrary, with less oversight, less accountability, and substantially greater potential for injustice.

First, the good news, such as it is: Firstly, the Convention Against Torture and ICCPR will be fully integrated into Immigration law (alongside the Refugee Convention), with explicit recognition of the ban on refoulement and deportation to torture or execution. However, the government will retain the option of deportation to a "safe" country when faced with having to protect someone they regard as "undesirable" - in other words, of wiping their hands of the obligations we have agreed to accept and dumping our problems on other countries. Clearly, the government is as committed to our fundamental human rights obligations as it is to our obligation to prosecute war criminals - i.e. not at all. Secondly, there will be no health exclusion in legislation. However, it will still remain in policy, and we will still turn away people on the grounds that they might be a "burden" on the health system, regardless of their merits or needs. Eve van Grafhorst must be turning in her grave. Thirdly, applicants must still be given reasons for decisions, and access to and a chance to respond to "potentially prejudicial information", as is required by the principles of natural justice. However, this is completely undermined by a decision to allow the use of classified information in immigration and deportation proceedings. While there are "safeguards", including non-classified summaries "if possible" and the use of "special advocates" to respond to classified evidence, these are not sufficient to ensure that classified "evidence" is properly tested, or that basic standards of justice and fairness are met - a fact which has caused British lawyers to refuse to serve as special advocates as they are forbidden from effectively representing their clients. This is one of the basic injustices of the Ahmed Zaoui case, and the government is now planning to inflict it upon even more people. Clearly, they've learned absolutely nothing from the whole saga.

And that's the good news, remember. The bad news is truly horrifying. Deportation thresholds will be lowered, and "permanent" residency retrospectively revocable on receipt of new information. Time-limits for appeals have been tightened, with a consequent undermining of justice and loss of accountability for decision making. The Chief Executive of the Department of Immigration - an unaccountable bureaucrat - will get a blank cheque to define search and entry powers through Order In Council - meaning that immigration officers could gain the power to kick in doors to look for suspected overstayers, without those powers being debated transparently in Parliament by representatives who can be held accountable through the electoral system. Detention periods will be increased, and judicial oversight decreased, solely for reasons of administrative convenience. Detention of refugee claimants will be permitted, and indefinite detention will be allowed where people refuse to cooperate in being deported back to torture and death (as in the case of Thomas Yadegary). Oh, and Immigration will get to run its own jails. No wonder New Zealand First is happy.

As a final note, the government wants to give the Department of Immigration the power to fingerprint New Zealand citizens at the border. So at some stage in the future, we could end up being fingerprinted (and having our fingerprints put on file, and shared with other agencies) not on being charged with a crime, but simply to re-enter our own country. This is simply grossly intrusive, and a violation of people's privacy. We don't allow the police to go around randomly fingerprinting people, and we shouldn't allow Immigration to do it either. International travel is not a crime, and kiwis taking overseas holidays should not be treated as criminals - no matter how convenient it is for the Immigration Service.

The value of independent review

Earlier in the year, the government launched a review of the Immigration Act. One of the issues canvassed - and which I didn't get around to posting on - was that of reviews and appeals. Here, immigration officials wanted to severely limit potential immigrants' access to independent review of their decisions, replacing the current Residence Review Board wholly or partly with a system of rubberstamp "internal review". However, the Residence Review Board doesn't seem happy about this; their annual report this year noted that the proportion of successful appeals had increased to 44%, including 36% where the Immigration Service's decision was incorrect (up from 31% the year before). It also noted that

This relatively high proportion of incorrect decisions shows the benefit of an independent appeal.

I agree, it does. However, somehow I don't think the Immigration Services is going to see it that way...

Submit!

Submissions on the government's review of the Immigration Act are due on July 1st - which is about the end of next week. So if you were planning on submitting something, now is the time to finish it off.

If you're strapped for time, Tze Ming has prepared a handy template [DOC] to customise and use. It includes her comments on the proposals, but also a full list of the questions asked, and space for further comments. She also highlights the key issues and points to some useful resources in her Public Address post here. Submissions can either be entered via their online system (details here), or simply emailed to actreview@dol.govt.nz.

As written, the review document proposes an immigration system which reflects immigration officials' view that potential immigrants are "the enemy", and that their decisions need not be justified to anyone, or even supported by evidence. That flies in the face of kiwi values of justice and fairness. If we want our immigration system to reflect our values, rather than theirs, then we need to speak up for it. So, please submit - otherwise the faceless officials will get their way.

Immigration Act Review index

Posts on the government's review of the Immigration Act 1987:

• 12/05/2006 Immigration Act Review III: Detention
• 27/04/2006 Immigration Act Review II: Exclusion and Expulsion
• 26/04/2006 Immigration Act Review: Other Voices
• 22/04/2006 Immigration Act Review I: Decision-making
• 06/04/2006 Eroding oversight
• 06/04/2006 Not impressed

(This is an index page so I have a central location to point to in future)

Immigration Act Review III: Detention

This is the third post in a series on the government's Immigration Act Review Discussion paper [PDF]. The review aims to completely rewrite the Act so as to "modernise" and "simplify" it - however, in practice, this "modernisation" and "simplification" seems to involve treating people unfairly while making it as difficult as possible for them to challenge their treatment.

The first post in this series dealt with Chapter 5: Decision-making, while the second covered Chapter 6: Exclusion and Expulsion. This post will cover Chapter 12: Detention.

Currently, the law allows the police to arrest and detain people where they have been served with a removal order or are to be deported, or where they have arrived and been refused entry or their eligibility for a permit cannot be determined (typically this covers cases where people, usually refugee claimants, arrive on false documentation). The conditions and duration of detention vary depending on the exact reason, but it is typically short; those arrested pending deportation or removal can be detained for only 48 or 72 hours respectively, after which immigration officials must persuade a judge to grant a Warrant of Commitment allowing continued detention for some period of time, typically a week (or up to 28 days in the case of someone refused a permit). Given the multiple different procedures and rules for detention, and the desire to standardise on one system for expulsion, there's clearly scope for procedural streamlining here - but Immigration wants to go further than that. They want to detain people for longer, with far less oversight by the courts, they want a general power to detain those in the country illegally against which no order has been served, or anyone claiming refugee status from within New Zealand rather than at the airport, and they want to detain those people themselves, rather than having to rely on the police or the Department of Corrections. In keeping with the general tenor of the review, most of these proposals ignore the human rights of potential detainees in favour of the administrative convenience for officials.

For example, the review proposes to increase the maximum period of detention without a warrant to 96 hours, or four days. Their reason is that the current period (48 or 72 hours) is too short to arrange a deportation - and much space is spent on the time-consuming administrative procedures involved. No thought is given to improving the efficiency of those procedures (there are a few obvious shortcuts which can be made) - and even less to the principle, fundamental in a free society, that any detention requires the strongest justification. Instead, they are proposing being able to throw people in jail for longer just because it is convenient for them.

It's a similar story with Warrants of Commitment. Immigration wants to increase the review period from 7 to 28 days, thus significantly decreasing oversight of the necessity of detention. Again, this is justified on administrative grounds - its just so much hassle having to go before a judge and make a case that you need to keep someone in jail. But these are short-term detainees, and the current timeframe provides a very definite deadline to work towards. Any increase in that timeframe would reduce the pressure on immigration officials to work quickly, and raise the spectre of American-style immigration detention, where people are jailed for months or years (without the usual constitutional protections) while waiting for their paperwork to be done so they can finally be deported. I do not think that we should be giving officials an incentive to be lazy where people are being kept in jail. And on a more fundamental level, I do not think we should be sacrificing the Magna Carta principle that detention must be justified simply to reduce the paperwork.

The review proposes increasing the maximum length of detention while waiting for deportation from three to six months. The justification is that it can sometimes take longer than three months to obtain travel documents. Interestingly, the review notes that both Australia and the UK reduce this problem by having arrangements with other countries allowing illegal migrants to be returned without documentation - but there is no proposal that New Zealand seek similar agreements. Immigration would rather jail people.

One of the scariest proposals is to allow the detention of anyone claiming refugee status from within New Zealand without proper documentation. This opens the doorway to Australian-style mass-detention of illegal immigrants - and ironically, at a time when Australia seems finally to be abandoning that "solution". Since when did we become Australians? And since when did seeking refugee status become a crime? This is nothing more than an attempt to deter claims, in violation of the spirit of the Refugee Convention.

Finally there's the question of who does the detaining. Here the Immigration Department wants to supplement its ability to declare places of immigration detention with the actual power to act as jailers. To some extent, they have such powers already - s140A of the Immigration Act allows the use of reasonable force to prevent those held in declared facilities from harming others, damaging property, or escaping custody - but these apply only after the issuing of a Warrant of Commitment. Initial detention still requires the use of police or prisons - which has attracted some criticism due to immigration detainees being held with criminals (a general problem for remand prisoners in our overcrowded prison system). Rather than working with police and the Department of Corrections to establish proper protocols for the treatment of immigration detainees and ensure that they are treated accordingly, Immigration's preferred solution is to cut those organisations (the ones that actually know how to run detention facilities and when the use of force is appropriate) out of the loop entirely. Instead, facilities (likely short-term holding rooms at airports) will be established and run by the Department of Immigration, and staffed by Immigration Officers. These Immigration Officers will supposedly be trained for the job, but given the low demand for such detention, it is unlikely that they will be full-time specialists - which will mean problems in ensuring that prisoners are treated properly, particularly in the event of violence. There is also the issue of oversight - the Department of Corrections has well-established (if flawed) oversight provisions to ensure that prisoners are treated lawfully and humanely, as well as established avenues of complaint. The review makes no mention of establishing similar oversight and complaint mechanisms for immigration detention. Combined, these two factors spell trouble. Ad-hoc detention by improperly trained staff who lack experience in running a detention facility and handling potentially uncooperative prisoners is simply a recipe for disaster.

Next: Chapter 10 - Compliance and Enforcement

Update: Inserted links.

Immigration Act Review II: Exclusion and Expulsion

This is the second post in a series on the government's Immigration Act Review Discussion paper [PDF]. The review aims to completely rewrite the Act to ensure a "firm, fair, and fast" immigration system; however many of the proposals seem to be emphasise the "firm" and "fast" aspects at the expense of fairness.

The first post in this series dealt with Chapter 5: Decision-making. This post will cover Chapter 6: Exclusion and Expulsion. As with Chapter 5, it is divided into three sections.

The first section covers "exclusion" - being forbidden to enter New Zealand. At present, the criteria for this are listed in s7 of the Immigration Act 1987, and in immigration policy. The reasons in the former include criminal offending, previous deportation, or the Minister thinking you are a Bad Person (a terrorist, potential criminal, or a "danger to the security or public order of New Zealand"); the latter include health, character, and failing to entry requirements laid out in policy. The key aim of this section is to see health and character requirements that are currently part of policy elevated to law - vastly reducing the scope for judicial review of those criteria. If accompanying provisions around exclusion are maintained, it would also remove any requirement to provide a reason for a decision - which is a recipe for abuse, particularly where "character" is concerned.

In addition to raising questions of oversight and accountability, there's also a question of proportionality here. It is one thing to refuse residency on the grounds of health or character, but its quite another to refuse entry. Without pretending to agree with the current use of these criteria, we have a far stronger interest in who will be living with us in the long-term than we do in who takes a holiday here.

Reading this section, it is difficult to escape the conclusion that the desire to entrench a character requirement in law is a reaction to recent controversial (would-be) visitors such as David Irving and Philip Nitschke, where immigration law has not seemed to offer the tools to deny entry to someone solely on the grounds that the government didn't like them. But the response - a catch-all "we don't need a reason" clause to catch anyone not otherwise excluded - is a licence for government abuse, not to mention arbitrary decision-making by officials. It raises significant questions of freedom of speech (which remember includes the freedom of New Zealanders to receive information as well as the freedom to impart it), and of discrimination or even victimisation on political grounds. This is simply not a tool we should be handing the government, and not a path we should be going down.

The second section deals with expulsion - or what is currently known as deportation or removal. There are two separate processes for this (hence the two names), as well as two more for revoking temporary or permanent permits. The aim is to replace these with a single, streamlined process. There would be a single list of criteria, covering everything from residence fraud to "national security", and meeting any of them would introduce automatic liability for expulsion (it is unclear who exactly decides whether the criteria are met - but I have a sneaking suspicion its nameless, faceless officials in secret again). The streamlining would come from removing the Minister from the loop (currently they must personally revoke residency permits, and approve all deportations of permanent residents who have been convicted of serious crimes), and (of course) limiting judicial oversight and avenues of appeal (fairness being seen as a barrier to chucking people out of the country). Left unstated in all of this is the fact that, in light of the proposals of Chapter 12, "automatic liability for expulsion" means automatic incarceration at the pleasure of the Immigration Service, again with little judicial oversight or protection.

I have no problem with streamlining processes, but again it seems that the changes are being driven by administrative convenience at the expense of fairness, and that the real rights and interests of migrants are being ignored. One particularly noxious example of this is that the proposals would dramatically erode the status of permanent residency. Currently there are strong protections in place to make it more difficult to eject permanent residents, on the basis that they have a stronger right and interest in remaining in New Zealand than overstaying tourists. The review recognises this very point in the chapter on appeals - but here, those stronger interests are simply ignored in favour of being able to kick people out of the country as quickly and easily as possible.

The third section deals with penalties for expulsion, and tweaks the current five year ban on re-entry to introduce graduated penalties, with no penalty for leaving voluntarily. This actually looks quite good, and is certainly better than the current system.

Next: Chapter 12: Detention