By Tim Fadgen
–Part I–
On 3 May 2022, the Ministry for Business Innovation and Employment (MBIE) accepted recommendations made in review of its practice of detaining asylum seekers. The review, conducted by Victoria Casey QC, was initiated at the request of the Chief Executive (Immigration) of MBIE and in response to a groundswell of critical attention focused on its practice of detaining some refugee claimants. Casey’s assessment was blunt: long-term detention of refugee claimants in prisons is wrong and raises “serious issues of non-compliance with New Zealand’s international and domestic human rights obligations.” This practice also quite clearly violated Aotearoa’s norms and values against such treatment of vulnerable people. These conclusions were not novel. Indeed, in many ways the conclusions about these practices follow earlier reviews of the practice, one by the United Nations (2015) and another by Amnesty International (2021) Unlike these earlier reports, Casey’s conclusions and her reasoning have important public policy implications for Aotearoa.
Who is subject to the policy?
The review pertains to detention practices for those people who either arrive at the border of New Zealand or who are already in New Zealand and later claim asylum status. These people are often referred to as “Convention refugees” because they are making a claim to asylum under the 1951 Convention Relating to the Status of Refugees. This is a population apart from the more commonly recognized group of so-called quota refugees. Quota refugees are people who are recognised by the New Zealand government as refugees before they arrive in New Zealand. Convention refugees are relatively few in number and pre-COVID years 2015 to 2020 saw between 300 and 500 such claims per year, with only 146 of those claims made at the border. Casey is clear to point out that while detention is a serious issue, it is not a significant problem if measured in terms of the total number of people who are confined. In fact, her review found that between 2015-2020, 2,500 people claimed asylum, fewer than 100 were actually detained. The seriousness of the practice, however, is not limited to the scale of it, however, but in its gross inconsistency with New Zealand’s vales and its international and domestic law obligations.
What is the current practice?
The particular issue here is the New Zealand government’s practice of detaining asylum seekers in prison whilst their claims for refugee status are adjudicated. The review notes that while New Zealand has a very strong reputation for providing a high standard of care to asylum-seekers as a general matter, New Zealand persists in detaining some asylum-seekers whilst their claims are pending. This detention is non-trivial in that some individuals have been held for a number of years.
A particular concern was not simply that detention was happening but also where it was happening. Asylum-seekers are held in prisons, notably Mount Eden Prison, integrated with other prisoners during their term of confinement. For many claimants, who have themselves been subjected to torture or other trauma prior to their arrival in New Zealand, such detention can be extremely difficult. The detention can exacerbate underlying mental health conditions and limit their ability to assemble evidence for an effective claim, which often involves the need to access documents and statements and other evidence from overseas.
What concerns were raised by the review?
At issue in this review are both New Zealand’s international obligations owed to asylum-seekers as well as domestic legal protections provided in the New Zealand Bill of Rights Act of 1990 and at common law. United Nations guidelines for example require countries like New Zealand to protect an individual’s right to seek asylum to enjoy basic human rights and freedoms of movement and in pertinent part to authorize the detention of an individual only as a “exceptional measure of last resort“ and furthermore that the conditions of detention must be humane and dignified and take into account the particular needs of each individual asylum seeker.
The convention thus requires an individual determination that detention is reasonable in each particular case. In addition, ongoing review of this detention to consider whether the circumstances warranting the initial detention endure, must be part of the process. In other words, there is a presumption that people should be free whilst their claims are pending. If they are to be restricted in any way, then their freedom should be limited to the least restrictive manner necessary. In this way, the asylum seeker’s freedom interest is weighed the government’s inherent obligation to protect its population from harm.
Casey’s assessment of the Immigration Act reveals two significant flaws. Firstly, refugee claimants can be detained “simply because they cannot be immediately deported” (2022, p. 8). The Act thus treats all individuals subject to deportation—or removal from New Zealand–in the same way, and in the case of the refugee claimant, without regard to New Zealand’s international obligations (See Immigration Act 2009, s. 316). Her review found that claimants were detained for often “frankly trivial“ grounds and in no way reflected actual risk to national security or threats to public safety or even evidence that they might flee to avoid an unfavourable outcome to their claim for asylum.
The Act’s second flaw is that it permits indefinite detention. In essence, a claimant can be detained for as long as it takes to make a determination on the underlying claim. In some cases, this has amounted to several years of detention. She notes that while the statute requires a warrant of commitment process that in theory requires a district court judge to review detention every 28 days, in practice this review falls short of the high standard set by the UNHCR guidelines. In fact, none of the confinements that Casey reviewed had been ended by a district court judge ordering the termination of the order of commitment.
Furthermore, she finds the INZ operations manual and associated guidance to be “completely ineffective“ as a safeguard. Perhaps much to the chagrin of MBIE was the obvious fact that the manual in use had referred to guidelines obsolete by more than 20 years. As a result, the internal guidance offered to officials in the execution of their duties “allows detention for reasons and thresholds” inconsistent with international norms. Related to this is her conclusion that INZ‘s operational guidance is not aligned to the Immigration Act. The Act sets such a low threshold for the issuance of a warrant of commitment, that the court essentially must grant one if it is applied for by an immigration official. Which again obviates the protections typically offered in judicial review and an essence creates in the compliance officer the discretion to detain asylum-seekers for almost any reason. This raises concerns about arbitrariness and the problematic concept of “absolute discretion” provided to compliance officers in the act.
Beyond these statutory and policy shortcomings, Casey’s review also focused on INZ compliance officer discretion. She observed that detention decisions were purely the result of an officer’s determination that once denied a visa, the individual should be detained. There were no internal safeguards or checks on the appropriateness of these decisions. Moreover, once the officer had made this determination, under the framing in the Act, the district court would always grant the order of commitment. This was thus tantamount to an absolute power in the hands of the INZ compliance officer. This concern is also not unique to the discrete question of asylum seeker detention but is common to other areas of immigration law and particularly with regard to deportation decisions more broadly. In this instance, Casey identified it as a fundamental and “basic structural problem with the Act” (2022, p. 10).
Casey summarises these concerns when she notes that
the combined effect of the structural features is that long-term detention of refugee claimants is effectively occurring at the discretion of individual INZ compliance officers, exercised on open grounds that are not open to review by the court. The regime established by the act is this fundamentally flawed at a structural level. (2022, p 12).
Given this, what then can be done to correct these practices? What are the possible implications for other immigration policy areas? I will post some thoughts on this tomorrow in Part II.
Dr Tim Fadgen is a lecturer in politics and international relations and Associate Director Graduate Programmes at the PPI
