Immigration Law and Policy Overview

Background

Immigration law and policy is concerned with facilitating and regulating the ability of citizens from other countries to enter New Zealand by balancing the right of the Executive to determine who comes within our borders with New Zealand’s International obligations. The Department of Labour through the New Zealand Immigration service (NZIS) is the government department responsible for administering the law and policy in this area although other Agencies also have an impact (eg Ombudsman, Privacy Commissioner, Customs and Police).

What are the objects of New Zealand Immigration Policy?

The objective of New Zealand's immigration policy is to contribute to economic growth through enhancing the overall level of human capability in New Zealand, encouraging enterprise and innovation, and fostering international links, while maintaining a high level of social cohesion.

How are these objects achieved?

This objective is achieved through selecting a broad mix of migrants on the basis of either their skills and experience or their family links to New Zealand. In practice this is done through 3 streams as part of the annual Immigration Programme: Skilled (60%) Family (30%) and International Humanitarian (10%).In each 2004/05 and 2005/06 the overall target for the programme was set at 45,000 with a 5000 "overflow" available Within each stream are various specific Categories for residence.

More information about immigration policy and particularly the various categories is available on the NZIS website: http://www.immigration.govt.nz/.

What are the laws governing Immigration and the Immigration Service?

There are several key sources of law in the immigration area. These are:

The Immigration Act 1987 (the Act) This (as at July 2005) is currently under review. Free access to the Act is currently available at www.legislation.govt.nz
Regulations set up under the Act, often also reflected in Policies.
Regulations can be found at: www.legislation.govt.nz
Policies made by, or under the delegated authority of the Minister of Immigration.
Decisions of judicial authorities including the Residence Review Board (www.residencereviewboard.govt.nz) , the Deportation Review Authority(www.justice.govt.nz/tribunals, the Removal Review Authority (www.removalreviewauthority.govt.nz/)
and the Refugee Status Appeal Authority set up under the Act),More details are provided below under Appeals. Most of these bodies have limited grounds and strict time limits for appeals. They are currently under review.
The District Court for deals with extension of Immigration Detention and the High Court for some appeals
The International Instruments New Zealand has signed including the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees (the "Refugee Convention");

the 1966 International Covenant on Civil and Political Rights and the optional Protocol relating to that Covenant;

the 1989 Convention on the Rights of the Child and New Zealand's reservations to that Convention;

the 1984 Convention Against Torture.

The New Zealand Bill of Rights Act 1990 is also relevant here particularly for breaches of the right to justice and to access to counsel for people in detention which can be pursued through the High Court (a high standard of proof is needed).:The New Zealand Immigration Service is generally exempted however from the anti discrimination provisions of the Human Rights Act 1993.
The rules of Natural Justice (procedural fairness) particularly in the context of judicial review by the High Court of decisions by the Immigration Service and by the Minister. A high standard of proof of unfairness is needed to be successful here.
The Ombudsmen Act 1975 regarding illegal, wrong or unreasonable actions, the Official Information Act 1982 regarding access to policies, procedures and rules and reasons for decisions and the Privacy Act 1993 regarding access to, correction and accuracy of personal information held and used by the Immigration Service.

For more information see Getting information

Who admnisters Immigration Law?

The Minister of Immigration has a high level of involvement in setting policy and giving directions and approving exceptions to Policy. The Minister has a special role regarding security threats. The Immigration Act gives the Government a wide discretion to set immigration policy to give effect to the Act – in other words to set the criteria that must be satisfied in order for an applicant to be granted a visa or permit. See the section on Policy below

The Act also gives certain officers and the Chief Executive of the Department of Labour who hold "warrants" under the Immigration Act a wide range of powers about what order they process applications in, what evidence above the minimum requirements they will require, whether they believe that evidence and to require information and passports. Some Senior Officers have powers to give special directions for Temporary visas and permits cancel Removal orders and to approve permits for people with unlawful status in special cases. There are limits on these powers: They must be administered fairly (see section on Fairness ) lawfully, within the overall intention of the policy and with due regard for humanitarian circumstances. Only the Minister can grant residence as an exception to Policy or by special direction or direct grant of a visa or permit to a Prohibited Person.

Customs Officers can also hold warrants to grant permits and deal with basic issues for arriving visitors and Police Officers have a role of assisting with removals.

What is Immigration Policy and where do I find it?

The key policy is Government Residence Policy set by the Minister of Immigration and stating the rules and criteria for residence Visas and Permits. This must be published and followed by Immigration Officers This is most readily available online in the NZIS Operations Manual. http://www.immigration.govt.nz/migrant/general/generalinformation/operationsmanual/. The Policy is also available at Immigration Branch Offices within New Zealand and overseas.

The Operations Manual also includes other policies such as Temporary Entry and Border and Investigation: exclusion and Removal of people from New Zealand set by the Chief Executive of the Department of Labour and other senior officials. These are also found at the above address although there may be additional internal procedures which are not provided for reasons of law enforcement or security.