Freedom New Zealand

Detention

Overall, the Immigration Bill extends the period that migrants can be held in detention by Police without charge or warrant, from the current 72 hours to 96 hours. Routinely, this will mean being held in police cells, even though the UN and NGO agencies have been pointing out to the NZ government for the best part of a decade the need for non-penal facilities for the assessing of migrants and asylum seekers. Several clauses do allow the NZIS to designate other premises as detention centres, but prisons are the only ones identified.

Immigration officers themselves will be able to detain people for up to four hours without a warrant. Clause 272 (e) allows detention for up to 96 hours of anyone suspected by an immigration officer or by a member of police of possibly constituting a threat or a risk to security.

At the very least, these clauses extend the power of the New Zealand police to hold people in detention without charge, pending checks on whether the suspects are liable, or not, for deportation. While 72 hours was previously possible, the general norm already seems to be shorter, and this calls into question the need for any extension to the 96 hours envisaged - for administrative convenience – under the Bill. Why is this necessary ? It does not seem to be required, with respect to criminal offences. In its November 2007 comparative study of detention practices ( called Charge or Release ) the British human rights organization Liberty concluded :
In New Zealand, persons arrested must be charged "promptly". There is no
fixed definition of "prompt" but case law on this question indicates that pre-
charge detention of more than 48 hours would not be considered "prompt".

In a welcome move, the Immigration Bill does enshrine various UN conventions – including the Convention Against Torture - in our domestic law. However, in my earlier post, I outlined how the Immigration Bill violates key provisions of that same UN Convention Against Torture – by, for instance requiring ( see clause 122b ) an asylum seeker to prove they would face a worse risk of torture if returned home, than would be usual in their country.

As written, clause 122 would allow New Zealand to return victims of mass torture and persecution, back into the hands of their torturers. Clause 132 allows for people to have their status as refugees or protected persons revoked, if the NZIS judges, in its wisdom, that circumstances have changed in their country enough to allow their safe return – or even, if a new NZIS officer happens to re-think an earlier decision made by a previous officer.

The even murkier aspect is whether New Zealand can arrange to return asylum seekers to a so called ' safe' third country – or on the basis of diplomatic assurances or promises that the person will not be tortured, or returned to where they would be tortured or persecution. The real trouble with ' diplomatic assurances' is that they are quite unenforceable - in a notorious case, Sweden returned two Egyptian asylum seekers back to Egypt, and the Swedes found out too late that Egypt's diplomatic promise not to torture the duo was not worth the paper it was written on.

Commonly, these diplomatic assurances entail the recipient countries ( Libya, Algeria et al) promising, with hand on heart, that they recognize the Convention Against Torture – even as Amnesty International and Human Rights Watch report on the extent of torture by security services.

On this point, clause 125 is the relevant part of the Immigration Bill. It creates an initial gateway decision by the immigration officer to consider a claim for refugee or protection status, based on whether the immigration officer feels that the applicant could find refuge in some other country. Moreover, clause 125 (2) (b) allows for the decision frame to include whether "relevant international agreements or agreement have, or could be lodged" for protection in another country. To my knowledge, New Zealand currently has no such agreements that would allow it to shuttle its asylum seekers elsewhere – so, this can only be an example of future proofing, a provision to allow the NZIS to pursue such agreements in future.

At it stands, the vagueness of clause 125 heightens the risk of return to torture, in violation of New Zealand's commitments under the UN Refugee Convention. At the very least, the issue of alternative countries of refuge and associated risks should be treated as part of the claim, and not entrusted to some desk officer as a reason to reject the claim at the outset. In addition, New Zealand should not be entertaining the prospect of diplomatic assurances and the bogus rationale they provide for offloading asylum seekers into situations of peril. The reality facing New Zealand is that fewer and fewer asylum seekers are getting here to claim protection - and the best international practice is headed towards the scrapping of diplomatic assurances, not the embracing of them.

In February 2008 for instance the European Court of Human Rights ( in a major case called Saadi vs Italy) stopped the deportation from Italy of one Nissam Saadi, back to his homeland in Tunisia. The deportation was refused, despite the fact that Italy had sought and got assurances from the Tunisian government that it did not practice torture, and voluntarily accepted all of the relevant UN conventions. The sceptical Court found instead that :

"The existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention.

Diplomatic assurances, the Court went on, did not remove the obligation to examine whether such assurances in practice provided a sufficient guarantee that the applicant would be protected against the risk of the cruel and degrading treatments prohibited by the Convention. "The weight to be given to assurances from the receiving State depends, in each case, on the circumstances obtaining at the material time."

Exactly. Yet judging by New Zealand's readiness to take at face value the European convictions against Ahmed Zaoui - convictions later found, when tested, to be quite irrelevant to his alleged risk to our national security – it is hard to see the NZIS vigorously adopting a stance of healthy scepticism towards the convenient agreements envisaged under clause 125. It would be far safer if clause 125(2) (b) in particular was dropped from the Bill entirely.

That's probably enough for now. One should also mention in passing though the very short timeframes that migrants have for gathering and filing the complex factual and humanitarian grounds for appeal against deportation. Or the unilateral ability of the Minister in clause 152 to deport people by Order in Council…and so on., and so on. .

On July 21, we will all get a clear idea of just how diligently the officials who advised the select committee have responded to the criticisms of the Bill voiced by the Privacy Commissioner, UNHCR, the Law Society, the Zaoui legal team and the dozens of other people and organisations that made submissions. It seems unlikely the Bill will be substantially revised – and if it isn't, it deserves to become an albatross around the neck of the Labour government.

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