Improving our processes for asylum seekers

24 April 2023

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 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 restrict the movement of asylum claimants are:

• 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.

5. The establishment of the Panel responds to that recommendation.

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:

• 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 (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 who is otherwise liable for arrest and detention.

8. Such decisions will be made consistent with the 2012 UNHCR Detention Guidelines and relevant provisions of the Immigration Act 2009.

9. Panel members are immigration officers and authorised to make decisions under the following sections of the Immigration Act 2009:

• 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 324 (Review of WOC and ROC).

10. 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, to ensure that the reasons for detention still apply (noting that WOCs are granted for periods of up to 28 days only).

11. Where a decision is made to enter into 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 new information becomes available to ensure that the reasons for the RRRA still apply.

12. If any person claims asylum at the International Airport or during Compliance activity, staff are to notify the Panel Secretariat immediately. 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.

13. If a person claims asylum outside of normal business hours and the immigration officer believes that a restriction to their freedom of movement should apply, they must prepare a referral as a matter of priority while 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

14. The Panel will not make decisions on recommendations to restrict the freedom of movement of individuals who have not claimed asylum.

15. The Panel will not use Section 61 of the Immigration Act 2009 to make visa decisions but may refer cases or provide recommendations to the specialised Section 61 team.

Panel membership

16. Membership of the Panel was determined by INZ’s Chief Operating Officer to ensure integrity of the regulatory system and the welfare of asylum claimants while in detention whilst mitigating risks to New Zealand. Accordingly, the primary Panel members are sufficiently high-level positions within the offices of the Chief Operating Officer, the Refugee and Migrant Services branch and the Verification and Compliance branch.

17. 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.

18. In addition to the Panel members with decision-making powers, the Panel will also convene with the Special Counsel (Immigration) from MBIE Legal Services present to provide legal advice.

Alternates 

19. As the Panel operates seven days a week, it is necessary that flexibility and business continuity is built into the system, to ensure that decisions regarding potential restrictions on the freedoms of asylum claimants are made as soon as possible.

20. In addition to three primary members of the Panel, the Chief Operating Officer pre-approves three alternate members as listed in Paragraph 24. In the case of an alternate for the Special Counsel, Immigration (who acts in an advisory capacity to the Panel), pre-approval is sought from MBIE’s Chief Legal Advisor. The purpose of identified alternates is to ensure a quorum, in instances where one of the Panel members is unavailable.

21. The roles of Panel alternates are allocated to specific INZ positions (identified in Paragraph 24) based on same criteria mentioned in paragraphs 16-18.

22. Nominated alternates are provided with the same designation and training as primary Panel members.

23. Where a quorum is not achievable due to unavailability of Panel members or their alternates, the Chief Operating Officer may, at their discretion and in accordance with the requirements set out at paragraphs 16-18 above, request that another INZ staff member act as a temporary Panel member for the purpose of making decisions on recommendations concerning restrictions on freedom of movement of asylum claimants. Any temporary appointment and reasons behind it will be recorded in meeting notes.

24. Permanent membership of the Panel is comprised of:

Chair

25. The Chief Operating Officer 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.

26. In the absence of the Chief Operating Officer, the role of Chair will be taken by the General Manager, Refugee and Migrant Services in the first instance (as the designated alternate Chair). In case of both being absent, the role of Chair will be filled by (in order):

• National Manager, Business Operations, INZ
• National Manager, Refugee and Migrant Services, INZ.

Conflicts of interest

27. 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.

28. 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):

• National Manager, Border Operations
• National Manager, Compliance Operations
• General Manager, Border and Visa Operations
• General Manager, Verification and Compliance
• INZ staff designated as Refugee Protection Officers
• INZ staff designated as Compliance Officers.

Meetings

Frequency of meetings

29. Panel members or delegates must be available to convene at the earliest available opportunity to ensure that decisions on potential restrictions on freedom of movement are assessed.

30. The Panel will meet on a two-weekly basis (or earlier if required, where new information becomes available), to review current detention, and RRRA/ROC cases to ensure that the reasons for restriction on liberty still apply.

Quorum

31. Three members (or alternates) must be in attendance for any decisions to be made.

Decision making

32. The Chair will seek consensus from the Panel; if there is no consensus, final decisions rest with the Chair.

Meeting location

33. Meetings will be held on Microsoft Teams in the first instance, or alternatively at the MBIE Stout Street office if members are there during working hours. There is no requirement to attend in person.

Secretariat function

34. The Panel will be supported by a Secretariat which will:

• 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
  35 The Secretariat function is operated from the Operations, Tasking and Improvement (OTI) branch of INZ.

Observation

36. Individuals who are not Panel members may be invited to attend deliberations of the Panel. Such attendance is for observation purposes only. In such an event, a special precaution will be taken to ensure privacy of the discussed individual.

37. Any observation must be approved by the Chair prior to the meeting.

Reporting

38. The Secretariat for the Panel will provide a regular report via the MBIE Chief Executive Monthly report, 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. This reporting will also be provided to Immigration Leadership Team (ILT), Minister of Immigration, and Associate Minister of Immigration.

Review

39. This Terms of Reference was originally finalised on 11 October 2022 and updated in December 2022 and April 2023. Further reviews will occur as required to ensure the document remains fit for purpose.

Signed by

Stephen Vaughan
Chief Operating Officer, Immigration New Zealand
26 April 2023.

Annex one

2012 United Nations High Commissioner for Human Rights (UNHCR) Detention Guidelines