Improving our processes for asylum seekers
In 2021 an independent review was commissioned about the detention of asylum claimants. The review made 11 recommendations and Immigration New Zealand accepted all of these.
Report to Deputy Chief Executive (Immigration) on detention of asylum claimants
In June 2021 Immigration New Zealand (INZ) commissioned an independent review by Victoria Casey KC (King's Counsel) — the 'Casey review'.
The review:
- assessed the operational practices relating to restriction of freedom of movement, including detention, of people claiming asylum
- is specific to people who claim asylum at the border or those who claim when detained for the purposes of deportation.
The recommendations from the review focused on:
- the inappropriateness of the use of Police and Corrections facilities to detain asylum seekers
- the need for better guidance on the systems and processes INZ staff use when considering the potential detention of asylum seekers
- the need to review INZ processes and legislation to ensure they are consistent with New Zealand's human rights obligations.
The full report is on the Ministry of Business, Innovation and Employment (MBIE) website.
INZ accepts review recommendations relating to the detention of asylum seekers — MBIE
Note
Most asylum seekers are not required to spend any time in detention. From 2015 to 2020 there were 2,655 asylum seekers in New Zealand, of which only 86 were detained.
Claiming asylum is a separate process from the refugee quota system. People coming to New Zealand under the refugee quota system are recognised as refugees before they arrive and enter as permanent residents. Both pathways allow people with a genuine need to be recognised as refugees and to find a new home in New Zealand.
Recommendations from the review
The Casey review made 11 recommendations. INZ accepted all the recommendations.
- There were 3 recommendations for legislative change.
- There were 8 recommendations for operational changes.
Recommendations about detaining people claiming asylum
The Casey review recommended that INZ should ensure any decisions to detain asylum seekers:
- are consistent with the 2012 United Nations High Commissioner for Human Rights (UNHCR) Detention Guidelines
- are made at a senior level that is high enough to ensure we only detain people in exceptional cases that meet the high threshold, and
- are regularly reviewed.
Note
We rarely have situations where we need to detain an asylum seeker or restrict their freedom of movement. The 2012 UNHCR Detention Guidelines clearly describe these situations. For each case, we start with the fewest restrictions possible.
Our response to the recommendations
INZ established a programme of work to:
- implement the operational recommendations as soon as practicable, and
- ensure we have systems and processes which ensure decisions are made consistent with the 2012 UNHCR Detention Guidelines.
We will consider recommendations for legislative change as part of any future review of the Immigration Act 2009.
To address a majority of operational recommendations, we have set up the Decision-making Panel on Restriction of Freedom of Movement of Asylum Claimants.
Decision-making Panel on Restriction of Freedom of Movement of Asylum Claimants
The purpose of the Panel is to ensure that decisions to restrict the freedom of movement of asylum claimants are consistent with the 2012 UNHCR Detention Guidelines.
The Chief Operating Officer of INZ selected the panel members to ensure:
- integrity of the regulatory system
- the welfare of asylum claimants, and
- mitigation of risks to New Zealand.
The Panel meets as soon as possible after being notified of a claim. The Panel also meets every 2 weeks — or earlier if required — to review current cases.
- consistent with the 2012 United Nations High Commissioner for Refugees (UNHCR) Detention Guidelines, and
- made at a sufficiently high level to ensure that detention is limited to exceptional cases which meet the high threshold required, and
- that these decisions are regularly reviewed.
- is to be subject to no restrictions and referred to the section 61 team for consideration as to whether to grant a visa under section 61 of the Immigration Act 2009 (the Act) (and/ or entry permission); or
- is to be subject to no restrictions, and released into the community without a visa (meaning the claimant remains unlawfully in New Zealand); or
- is to have their liability for deportation cancelled; or
- is provided with the opportunity to enter into a Residence and Reporting Requirements Agreement (RRRA); or
- is subject to an application to the district court for a Warrant of Commitment (WOC). This includes situations in which an individual makes a claim for asylum once they have been served with a Deportation Liability Notice or a Deportation Order and have already been arrested and detained for the purposes of deportation or turnaround under Part 9 of the Immigration Act 2009; or
- if detained under a WOC, is subject to an application to Release on Conditions (ROC); or
- if subject ROC, is also subject to an application to the district court to vary or cancel those conditions; or
- is arrested and detained by police under section 313 of the Immigration Act 2009 (if otherwise liable for arrest and detention; or
- is granted a visa and/or entry permission and/or has their liability for deportation cancelled.
- Section 61 (to grant a visa of any type to a person unlawfully in New Zealand)
- Sections 172 and 177 (Cancellation or suspension of deportation liability)
- Section 313 (Initial detention)
- Section 315 (Residence and reporting requirements)
- Section 316 (Warrant of Commitment)
- Section 320 (3)(b) (Variation of conditions)
- Section 324 (Review of WOC and ROC).
- National Manager, Refugee and Migrant Services, INZ
- Associate Deputy Secretary Immigration, INZ
- General Manager Immigration Compliance and Investigations, Te Whakatairanga Service Delivery, and
- General Manager Immigration Risk and Border, and
- Director Visa (Border portfolio), and
- National Manager Compliance Operations, and
- National Manager Investigations, and
- Staff designated as Refugee Protection Officers, and
- Staff designated as Compliance Officers.
- Referral recommendation is between tiers 5 and 9, or
- Claimant is currently detained under WOC, or
- Claims prior to WOC hearing
- Referral recommendation RRRA or ROC between tiers 1 and 4, and
- Claimant has no suitable residence to reside
- Referral recommendation RRRA or ROC is between tiers 1 and 4, and
- Claimant has suitable residence to reside
- Be responsible for ensuring that all relevant information is available to the Panel on which to base its decisions.
- Liaise on the Panel’s behalf with operational staff where additional information is required.
- Communicate decisions to relevant operational staff.
- Maintain a register of all cases put to the Panel, and the outcome of the Panel’s decision-making.
- Facilitate regular reporting on decisions taken by the Panel to the Deputy Secretary Immigration and the Chief Executive of the Ministry of Business, Innovation and Employment (MBIE).
- Ensure that all documentation is stored in accordance with MBIE policy and the Public Records Act 2005.
10 February 2025
Purpose
1. This document outlines the purpose, scope and function of the Decision-making Panel on Restriction of Freedom of Movement of Asylum Claimants (the Panel).
Background
2. In June 2021, Immigration New Zealand (INZ) commissioned a review by Victoria Casey KC of INZ processes and procedures relating to restriction of freedom of movement of asylum (refugee and protection status) claimants.
3. The final report resulting from the review was provided to INZ on 23 March 2022.
4. Key recommendations from the review were that INZ should ensure decisions to detain asylum claimants are:
5. The establishment of the Panel addresses those recommendations.
Purpose and function of the Panel
6. The purpose of the Panel is to ensure that decisions to restrict the freedom of movement of asylum claimants are consistent with the 2012 UNHCR Detention Guidelines (see Annex One).
7. The Panel decides whether an asylum claimant:
8. Such decisions will be made consistent with the 2012 UNHCR Detention Guidelines and relevant provisions of the Immigration Act 2009.
9. The Panel may, however, also consider issues of public safety where these are material to determining the suitability of any restrictions (the use of a RRRA).
10. Panel members are immigration officers and authorised to make decisions under the following sections of the Immigration Act 2009:
11. Where a decision is made to apply for a WOC to detain a person who is an asylum claimant, and that WOC is granted by a district court judge, the Panel will review the detention status of the individual on a two-weekly basis (or earlier where relevant new information becomes available prior to the regular review) to ensure that the reasons for detention still apply (noting that WOCs are granted for periods of up to 28 days only).
12. Where a decision is made to enter a RRRA under section 315 of the Immigration Act 2009, the Panel will review this status on a two-weekly basis (or earlier where relevant information becomes available prior to the regular review) to ensure that the reasons for the RRRA still apply.
13. If any person claims asylum at a New Zealand International Airport or during compliance activity, staff are to notify the Panel secretariat at the earliest opportunity. No claimants shall be detained in police custody unless at the direction of the Panel; however, where risks to the safety of INZ staff or the claimant are identified, police should be contacted as a matter of course.
14. If a person claims asylum outside of standard business hours and the immigration officer considers that a restriction to their freedom of movement should apply, the officer must prepare a referral as a matter of priority and the Panel is convened at the earliest opportunity. In the event the Panel’s decision is required urgently and the Panel cannot be convened within one hour, the chair will be available to receive a verbal update, assess the case, and determine whether any restriction on freedom of movement should be applied. This decision will be subsequently reviewed by the Panel at the earliest opportunity.
Scope of decision-making
15. The Panel will not make decisions on recommendations to restrict the freedom of movement of individuals who have not claimed asylum.
16. The Panel will not generally use its power under Section 61 of the Immigration Act 2009, but rather refer cases or provide recommendations to the specialised section 61 team. However, in exceptional circumstances, the Panel reserves the right to make the decision to grant a visa, in which case it will direct the section 61 team to do so.
17. The Panel will make a decision on recommendations to restrict the freedom of movement of individuals who have claimed asylum using a graduated response table of reporting conditions (Tiers 1-8) to proportionately mitigate any concerns identified.
Panel membership
18. Membership of the Panel is determined by INZ’s Chief Operating Officer (COO) to ensure the integrity of the regulatory system, the welfare of asylum claimants while in detention and the mitigation of risks to New Zealand. Accordingly, the primary Panel members are from sufficiently high-level positions within the Chief Operating Officer branch, the Refugee and Migrant Services branch, Service Design, and Implementation branch (SDI) and Assurance branch.
19. Panel membership is linked to specific roles. The roles selected come with prerequisite skills, knowledge, and experience within the immigration system for appointment to those roles.
20. In addition to the Panel members with decision-making powers, the Panel will convene with the Special Counsel (Immigration) from MBIE Legal Services to provide legal advice.
Alternates
21. As the Panel operates seven days a week, it is necessary that flexibility and business continuity are built into the system to ensure that decisions regarding potential restrictions on the freedom of movement of asylum claimants are made as soon as possible.
22. In addition to three primary members of the Panel, the COO approves three alternate members as listed in paragraph 26. In the case of an alternate for the Special Counsel, Immigration (who acts in an advisory capacity to the Panel), approval is sought from the MBIE Chief Legal Officer. The purpose of identified alternates is to ensure a quorum in the absence of primary Panel members.
23. The roles of Panel alternates are allocated to specific INZ positions (identified in paragraph 26) based on the same criteria set out in paragraphs 18 and 20 above.
24. Alternate Panel members are provided with the same designation and training as primary Panel members.
25. Where a quorum is not achievable due to unavailability of Panel members or their alternates, the COO (or the acting Panel Chair in the absence of the COO) may, at their discretion and in accordance with the requirements set out at paragraphs 18 to 20, request that another staff member acts as a temporary Panel member. Any temporary appointment and reasoning for such appointment will be reflected and recorded in meeting notes.
26. Permanent membership of the Panel is comprised of:
| Role | Title and organisation |
|---|---|
| Chair | Chief Operating Officer, INZ |
| Member / 1st Alternate Chair | General Manager, Refugee and Migrant Services, INZ |
| Member | Principal Business Advisor to the General Manager, Service Design and Implementation, INZ |
| Alternate Member / 2nd Alternate Chair | National Manager, Refugee and Migrant Services, INZ |
| Alternate Member / 3rd Alternate Chair | Associate Deputy Secretary Immigration, INZ |
| Alternate Member | Principal Business Advisor to the General Manager, Assurance, INZ |
| Special Counsel (Advisory function only) | Special Counsel, Immigration, MBIE |
| Alternate Counsel (Advisory function only) | Manager, Legal Services, MBIE |
27. If a person is in a temporary acting position for more than three months, they will function as a permanent member of the Panel for that duration. If the person is a short-term (less than three months) member of the Panel or in an informal acting capacity, the Panel will convene with the alternative chair/member specified under paragraph 25.
28. For a person in a temporary acting position of more than three months, members will need to advise the secretariat at the earliest opportunity. The secretariat will then be responsible for ensuring that the member is designated as an as an immigration officer and authorised to make decisions under the Immigration Act 2009.
Chair
29. The COO serves as the Chair of the Panel and is responsible for ensuring the integrity of the decision-making process. The Chair is also responsible for appointing Panel members and ensuring that decisions are only made by the Panel where there is a quorum.
30. In the absence of the COO, the role of chair will be filled by the General Manager, Refugee and Migrant Services in the first instance (as the designated alternate Chair). In the absence of the Chair and alternative Chair, the role will be filled by (in order):
Conflicts of interest
31. All Panel members must declare any actual, potential or perceived conflicts of interest. In all cases where a conflict of interest exists, or may be reasonably perceived to exist, the Chair will decide whether the member, having disclosed the interest, may participate for a particular decision as an active member of the Panel, or is not suitable to sit on the Panel for that decision.
32. To avoid the potential for perceived conflict of interest, officials in the following roles cannot be considered for any future panel membership (either as a primary member or as an alternate):
Meetings
Frequency of meetings
33. Panel members or alternates must be available to convene at the earliest opportunity to ensure that decisions on potential restrictions of freedom of movement are assessed.
34. The Panel will meet on a two-weekly basis (or earlier when required, where information becomes available prior to the regular review), to review current detention, and RRRA/ROC cases to ensure that the reasons for restrictions of liberty still apply.
Quorum
35. The Panel will use a response level approach to form the required membership for any decision to be made.
If a priority decision is required the Chair holds authority to make an approval in principle (AIP) decision, to enable the release of a claimant to the community. The AIP decision will then be reviewed by all Panel members within two days.
| Response level | Details of referral | Members required |
|---|---|---|
| Level 1 response — Decision required within a 4-hour timeframe |
|
Chair (or alternate Chair) and Special Counsel (or alternate) |
| Level 2 response — Decision required within a 6-hours timeframe |
|
Chair, 1 member (or alternates) and Special Counsel (or alternate) |
| Level 3 Response — Decision required within an 8-hour timeframe |
|
Chair, 2 members (or alternates) and Special Counsel (or alternate) |
Decision making
36. The Chair will seek consensus from the Panel; if there is no consensus, final decisions rest with the Chair.
Varying reporting requirements
37. The Panel will seek agreement from claimants to temporarily vary their reporting requirements when their reporting day falls on a public holiday, to allow them to remain compliant and engaged with the immigration system.
Meeting location
38. Meetings will be held either on Microsoft Teams and/or at the MBIE Stout Street office if members are there during standard business hours.
Secretariat function
39. The Panel will be supported by a Secretariat which will:
40. The secretariat function is operated from the Chief Operating Officer Immigration (COOI) branch of INZ.
Observation
41. Individuals who are not Panel members (including the General Manager, Immigration Risk and Border and the General Manager, Immigration Compliance and Investigations, Te Whakatairanga Service Delivery, MBIE) may be invited to attend meetings of the Panel, at the discretion of the Panel Chair. Such attendance is for observation purposes only. As per section 151 of the Immigration Act 2009, observers must maintain the confidentiality of any information concerning claimants whose cases are decided by Panel.
Reporting
42. The secretariat for the Panel will provide a regular report as required, detailing the number of decisions taken in the period and the details of any cases where a decision is made to detain a claimant in police custody or to seek a WOC from a district court judge.
43. The secretariat on behalf of the Panel will advise the Office of the Ombudsman when an asylum claimant is detained in a correctional facility.
Review
44. This Terms of Reference was originally confirmed on 11 October 2022 and updated as recorded on page one. Further review will occur as required to ensure the document remains fit for purpose.
Signed by
Stephen Vaughan
Chief Operating Officer, Immigration New Zealand
10 February 2025.
Annex one
2012 United Nations High Commissioner for Human Rights (UNHCR) Detention Guidelines