By Tim Fadgen
In my last post, I summarised the Victoria Casey QC’s assessment of the New Zealand government’s practice of detaining asylum seekers and MBIE’s recent choice to (largely) accept this criticism and to enact changes to improve New Zealand’s practice on this. In this post, I will consider the necessary changes and briefly consider some potential broader implications of these changes.
What changes are necessary?
There are several alternatives considered to bring New Zealand’s practice in line with international standards. First, the review considers the most basic question: whether Aotearoa New Zealand should even detain asylum seekers at all. Casey is unequivocal that the presumption must be against detention. Seeking asylum is a right guaranteed by international law. Unless there are overriding concerns such as state or community security, it is unlikely that detention would ever be warranted. Casey next considers whether some middle-ground form of detention, for instance at the Mangere Refugee Resettlement Centre or an equivalent facility. Whilst possibly appealing on some level for those who wish to maintain some form of detention, the option is problematic for two reasons. First, it works against the presumption against detention and that the existing housing options do not neatly fit this population. A significant investment by central government to create a suitable, fit-for-purpose facility would be costly, take years to complete and in the end address the needs of only a tiny portion of claimants for whom the government has a substantiated fear of harm to the community. A final option would involve release to the community with electronic monitoring. She concludes that this option is possible in those rare instances where some form of government surveillance would be deemed necessary. It also seems that this option would most closely conform with UNHCR guidelines as well as New Zealand’s domestic law.
With the shift in policy to one of non-detention and the required statutory changes necessary to enshrine this in law, institutional reform at INZ is also required. Given the serious concerns raised in the review about compliance officer discretion as informed by the internal policies and practice guidance, greater support must be built in in the form of guidelines and training and other information so that officers can approach claims in a fundamentally different way.
To achieve this, Casey counsels essentially a bifurcated approach. First, the compliance officer’s initial determination is whether or not to grant a visa in some form to the migrant thereby temporarily regularising their immigration status. If a visa is denied, then a second decision would be made as to whether (and the grounds upon which) to detain the asylum seeker. Any decision to detain (and thus contrary to the presumption of the least restrictive environment), would be subject to “rigorous internal review.” Processes such as these force the compliance officer to more carefully consider and articulate her or his reasons for seeking detention in the first place and would immediately provide a second set of eyes over the decision to ensure it is sufficient to rebut the presumption that the individual be free pending resolution of the claim. And in those rare instances where an individual is thought to constitute a significant risk to national security or otherwise, the warrant of commitment process is invoked giving the District Court jurisdiction over the matter.
What was unclear from the report was whether this enhanced scrutiny during the second leg of this analysis would be triggered in all cases where any form of enhanced surveillance was invoked. If an officer determines that a person can be released with some form of electronic monitoring and regular reporting requirement, will this trigger “rigorous internal review”? Will the decision be revisited at regular intervals and consideration of less restrictive means be possible? Then there is the question of cost. Revamping the statute, internal policy, practice manual and training regimen for compliance officers is one thing. Establishing a community-based electronic monitoring and reporting regime and what happens to an individual who violates conditions of their release will likely carry significant costs and, as Amnesty International (2021) has pointed out, can be difficult to implement in practice.
What is perhaps most remarkable about MBIE’s acceptance of these recommendations, is just how much they mirror criticism raised as far back as 2015 and again in 2021. In the earlier example, the United Nations Working Group on Arbitrary Detention issued a report on the practice to the Human Rights Council. Then, in 2021 a widely covered study into the phenomenon by Amnesty International. This begs the question why it took yet another review of the agency’s flawed practices to bring about the recognition that something was indeed wrong with this practice? Not only did the agency continue to violate these international obligations and domestic human rights principles and social norms in the years since this earlier review, the financial costs of detention on the public purse were significantly higher than they might otherwise have been, should the vast majority—if not all of the detainees—had been free whilst their claims were determined.
Part of this, of course, is a species of long-standing institutional preference of problem avoidance—changing the practice based on these external pronouncements about their impropriety would only appear to be a validation of them. There would still be the need to identify suitable funding to change the practice. Casey’s report had access to more sensitive internal documents and key actors than these earlier reviews and her conclusions are unequivocal: the practice is wrong and must be abandoned. What’s more is that Casey’s analysis, when read properly is a carefully crafted political document as well. It lays blame on flaws in the legislation—and does not implicate any particular person for its shortcomings. Most importantly, MBIE and the current government can chalk this up as an agency doing its best to follow a flawed law.
This is a fine way to end a bad practice in support of which there was seemingly no one. MBIE and Immigration NZ, however, must take careful account of the other system-wide implications of this review. Chief amongst them is the need to establish more rigorous and regular reviews of operating procedures, policies, and practice manuals to ensure international best practices are reflected. This extends to training and monitoring of compliance officer conduct and providing robust internal reviews of decision-making—particular in those areas which can be exercised under so-called ‘absolute discretion’.
This woeful practice of detaining asylum seekers is, it would seem, soon at its end in Aotearoa. Yet other practices equally at odds with our national commitment to the protection of human rights within the immigration space, such as our practice of routinely deporting long-term members of our communities should also be re-examined and in the process, re-considered after Casey’s clear articulation of New Zealand values and the overreliance upon coercive and punitive measures within the immigration policy space inconsistent with those values.
Amnesty International (2021). Please Take Me to a Safe Place: The Imprisonment of Asylum Seekers in Aotearoa New Zealand.
Casey, V. (2022). Restriction of Movements of Asylum Claimants. Report to Deputy Chief Executive (Immigration) of the Ministry of Business, Innovation and Employment.
Dr Tim Fadgen is a lecturer in politics and international relations and Associate Director Research Programmes at the PPI