A16.2 Operational instruction: treatment of persons claiming refugee or protected person status on arrival at the border

Note: The operational instructions contained in this section of the Operational Manual do not constitute immigration instructions as described in section 22 of the Immigration Act 2009.

A16.2.1 Introduction

This Operational Instruction provides guidance to immigration officers concerning the treatment of individuals claiming refugee or protection status on arrival at the border.

The overriding principle behind the Operational Instruction is that, if freedom of movement of persons claiming refugee or protection status at the border is to be restricted at all, then it should be restricted to the least degree and for the shortest duration possible.

A16.2.5 Background

1. Where a person arrives in New Zealand from another country and claims refugee status under the 1951 United Nations Convention Relating to the Status of Refugees (the Refugee Convention), or protection status under the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) or the 1966 International Covenant on Civil and Political Rights (ICCPR), care must be exercised in determining the appropriate immigration response. This is especially important where the response involves possible restrictions on their freedom of movement. Commitment to a system of asylum, as being a Party to the Refugee Convention, CAT and ICCPR entails, requires all persons claiming asylum to be treated carefully and with sensitivity at all stages of the process.

A16.2.10 When an individual claims asylum at the border

1. New Zealand has a general obligation to admit people who make a claim for refugee or protection status on arrival in New Zealand. In essence, this means that generally claimants at the border should be granted a visa and entry permission.
2. In making an entry permission decision (see Y3.5), officers should consider that such people may be tired, disoriented, distressed, and incapable of communicating in English, either orally or in writing.

A16.2.15 Decisions to restrict freedom of moment

1. Decisions whether to restrict the freedom of movement of asylum claimants are made by the Decision-making Panel: Freedom of Movement of Asylum Claimants (the Panel) (see A16.2.25 below). If a decision has been made to refuse to grant entry permission an officer may recommend to the Panel that the person’s freedom of movement should be restricted by:
   1. release into the community on residence and reporting requirements under section 315 of the Immigration Act 2009 without the grant of a visa and without initially detaining the person under section 313 of the Immigration Act 2009; or
   2. initial detention under section 313 of the Immigration Act 2009 for the purpose of release into the community on conditions under section 320 Immigration Act 2009; or
   3. initial detention under section 313 of the Immigration Act 2009 for the purpose of obtaining a warrant for further detention in an approved premises under section 317 of the Immigration Act 2009; or
   4. initial detention under section 313 of the Immigration Act 2009 for the purpose of obtaining a warrant for further detention in a penal institution under section 317 of the Immigration Act 2009.
2. A decision must be made by the Panel, before immigration officers proceed with such restrictions.
3. No claimants should 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.

A16.2.20 Considerations when recommending restrictions on freedom of movement

1. When recommending restrictions on freedom of movement to the Panel, the overriding principle to be applied is that, if freedom of movement of individuals claiming refugee or protection status at the border is to be restricted at all, then it should be restricted to the least degree and for the shortest duration possible. Particular care must be given in any decision involving women (particularly pregnant women and adolescent girls), children and members of other vulnerable groups (see A16.2.20.1 below).
2. In making a recommendation to the Panel, officers must take into account the individual circumstances of the claimant and factors relevant to the arrival. This may include the extent to which the claimant is able to provide accurate and reliable information about their identity, and the extent to which there are identified risks to national security and public order.
3. As per the UNHCR 2012 Detention Guidelines, and international law, there are three purposes for which restrictions may be necessary in any individual case: 
   1. to protect public order; and  
   2. to protect public health (this is a matter for New Zaland’s health authorities rather than Immigration New Zealand); and 
   3. to protect national security.       
4. The protecting public order ground has a number of "sub-purposes" including: 
   1. to prevent absconding and/or in cases of likelihood of non-cooperation; 
   2. for initial identity and/or security verification (for minimal periods only and only for as long as reasonable efforts are being made to establish identity or to carry out security checks). 
5. It should be noted that the absence of valid travel documents is just one factor which may be taken into consideration when making a decision whether or not to recommend restrictions on freedom of movement. There is no predetermined view that a claimant without valid travel documents, or whose documents have been destroyed, should be treated as high risk, as it is recognised that individuals with legitimate claims to refugee or protection status may have to resort to such measures to escape a well-founded fear of persecution, torture, cruel treatment or arbitrary deprivation of life.

A16.2.20.1 Children and young persons under 18 years of age

1. In cases where a child or young person under 18 years of age who has (or, if accompanied, whose parent/s have) claimed refugee or protection status and any restriction on freedom of movement is being considered, the additional principles set out below apply. These principles are in accordance with the UNHCR Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum (February 1997) the 2008 UNHCR Guidelines on Determining the Best Interests of the Child, Guidelines on International Protection No 8 and the United Nations Convention on the Rights of the Child:
   1. The best interests and welfare of a child or young person shall be the primary consideration;
   2. A child or young person is entitled to such measures of protection as are required given their status as a minor;
   3. A child or young person is entitled to receive appropriate protection and humanitarian assistance in pursuing their claim to refugee or protection status;
   4. A child or young person is not to be separated from their parent(s) against their will, except where such separation is necessary for the best interests and welfare of the child or young person;
   5. In the case of a child or young person under 18, there must be a responsible adult to represent their interests, in accordance with, and as defined in, section 375 of the Immigration Act 2009, before any decision regarding restrictions on that child or young person's freedom of movement is made;
   6. A child or young person is entitled to express their views regarding any proposed restriction on their freedom of movement, either personally or through a responsible adult. Due weight is to be given to those views having regard to the age and level of maturity and understanding of that child or young person;
   7. The detention of a child or young person is only to be used as a measure of last resort and for the shortest appropriate period of time; and
   8. A child or young person should not be detained with adults unless it is considered in that child’s or young person's best interests and welfare to do so (for example if this is the only way to preserve family unity). It is recognised, however, that due to the number of suitable facilities, in some cases detention with adults will be unavoidable.
2. On the basis of these principles, as a general rule, unaccompanied children and young persons under 18 years of age should not be detained, and it would only be in extenuating circumstances that their detention in a penal institution could be justified as necessary. Any restriction on the freedom of movement of an unaccompanied child or young person under 18 years of age should only occur after the Ministry for Children, Oranga Tamariki has been involved, either in the role of responsible adult, or otherwise.
3. As a minimum, any restriction on the freedom of movement of an accompanied or unaccompanied child (all young persons under 18 years of age) should be notified to the Ministry for Children, Oranga Tamariki as soon as practicable after that detention has occurred.

A16.2.25 Decision-making by the Decision-making Panel: Freedom of Movement of Asylum Claimants (the Panel)

1. The Panel makes decisions having regard to the United Nations High Commissioner for Refugees (UNHCR) 2012 Detention Guidelines and the New Zealand Bill of Rights Act 1990. The Panel may, however, also consider issues of public safety where these are material to determining the suitability of any recommendations.
2. Panel decisions initially, and upon review, include 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 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 to a 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.
3. Panel members are immigration officers and authorised to make decisions under the following sections of the Immigration Act 2009:
   • 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).

A16.2.25.1 Regular review of restrictions on freedom of movement

1. Where a decision is made by the Panel to restrict the freedom of movement of a claimant, those restrictions will be reviewed on a two-weekly basis (or earlier where relevant new information becomes available prior to the regular review) to ensure that the reasons for such restrictions still apply.

Effective 04/08/2026