Blog | Protection or Punishment? New Zealand Asylum and Refugee Policies Under the Spotlight

By Elzanne Bester

Does New Zealand engage in contradictory policies when it comes to immigration policy and New Zealand’s stance on asylum seekers? New Zealand displays exemplary international adherence to international human rights law and exerts positive political rhetoric about refugee resettlement. However, at the same time, New Zealand also prepares for the potential storm of mass arrivals of asylum seekers by toughening immigration regulations authorising entry and eligibility for protected status. This article not only addresses the contradictory interrelationship between New Zealand’s protection and punishment policies around refugee and asylum seekers but seeks to understand the current policy around detainment of asylum seekers and the mandatory detainment of mass arrivals.

An inconvenient truth

It has recently come to light that the United States administration has been separating families seeking asylum who cross the US border illegally.[1] Children under 18 years of age are systematically separated from their parents, classified as ‘unaccompanied alien children’ and sent into custody under the Office of Refugee Resettlement.[2] Their parents are either held in mass immigration detention centres or criminally prosecuted. Furthermore, families legally entering the US seeking asylum are separated upon arrival if they do not enter with the appropriate documentation.[3] The detention of immigrant families is a continuation of the 2014 immigration policy aimed at curbing the ‘crisis’ of migrants often fleeing from life-threatening conditions and entering the US to seek asylum. This zero-tolerance detention policy is deemed a violation of international human rights.

New Zealand stands in solidarity with the rest of the international community to condemn the measures taken by the Trump administration. Unfortunately, despite, our reputation of speaking out against human rights violations and adhering to international human rights law, New Zealand policies have also detained those seeking refuge within our borders, in some cases, indeterminant and arbitrary. New Zealand has also indirectly promoted the systematic separation of families through the inability to guarantee family reunification of asylum seekers. These policies call into question New Zealand’s “pristine” reputation of Human Rights and raise two main issues which may justify such practices. The first is the invisibility of such processes due to the small number of asylum claimants and intake of refugees, making such operations unknown to the public.[4]  The second is the normalisation of detainment. The increasing global trend of displaced people and the increasingly punitive state responses has justified the development of a new global norm worldwide which promotes the detainment of asylum seekers in custody as opposed to exploring less restrictive and more humane options.[5]

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https://unsplash.com/photos/IFh4o-U-BGg

New Zealand’s adherence to International Human Rights

New Zealand complies with international human rights law on the status and rights of asylum seekers, refugee and protected people. In the wake of atrocities witnessed in the 20th century, the United Nations Convention Relating to the Status of Refugees 1951 (The Refugee Convention) recognises and protects those who fear prosecution because of race, religion, nationality, membership to a specific social group or political party, and who are unable to secure protection in their own nation.[6] Nations who ratified this convention opened their doors to populations under threat, guaranteeing the human right of protection, support and refuge.[7] New Zealand is a proud signatory of the Refugee Convention and the subsequent 1967 protocol which entrenches the legal protections for refugees within our legislative framework. Similarly, New Zealand has ratified other international conventions which give asylum claimants the right to seek refuge, the right to due process, the right to habeas corpus and the fundamental rights of a citizen such as respect and dignity until refugee status is confirmed.[8]

Global trends

The number of refugees, asylum seekers and migrants is rising at a rapid rate. Currently, there are 68.5 million individuals forcibly displaced worldwide because of fear of persecution, civil unrest, political instability or conflict and violence. Global trends indicate that the forcibly displaced population have increased in 2017 by 2.9 million people, with 3.1 million asylum seekers globally.[9] These rapid changes have generated anti-migrant rhetoric and fierce nationalistic criticism against the potential influx of asylum seekers in Europe, the US and Australia.

New Zealand’s response to global trends

New Zealand has a commendable refugee resettlement programme. However, advocates raise concerns over New Zealand’s current policy regarding those seeking asylum upon arrival to New Zealand. Critics maintain that ‘immigration law facilitates the detention and removal of asylum seekers rather than protecting them.’[10] Detention is either mandatory for mass arrivals or discretionary detention upon arrival in favour of providing protection, through meeting the basic security, economic and human needs of asylum claimants.[11]

New Zealand has responded to the crisis of forced displacement, adhering to their international convention commitments through firstly, increasing the Refugee quota from 750 to 1,000 per annum. Secondly, through establishing a Refugee and Protection Unit within Immigration which is responsible for quota refugees, family members of refugees and asylum seekers. Thirdly through New Zealand’s exemplary six-week Refugee Resettlement Programme in Mangere, Auckland. While New Zealand has taken positive steps towards dealing with an on-going humanitarian crisis, New-Zealand’s shortfall lies in the differential treatment of Conventional refugees and quota refugees, furthermore the less secure status of asylum seekers and their indeterminant exclusion from protection.[12]

New Zealand grants asylum claims per the Immigration Act 2013, whose subsequent amendments aim to tighten border control regarding suspicious or illegal entry [13]. The Refugee Status Branch of Immigration considers these applications. During this time, asylum claimants have the right to remain in NZ in accordance with the human right obligation of non-refoulement.[14] During 2016-2017, 71 of 269 applicants were granted refugee status. Declines may be appealed before deportation is required. Given New Zealand’s geographic isolation, those seeking asylum in New-Zealand are few in comparison to other OECD countries.[15] Compared to Australia who processed 8988 asylum seekers in 2014, New Zealand processed only 288. Our small intake may account for the disparity in immigration policy and degree of severity between the ‘soft touch’ of NZ Immigration laws and the ‘border enforcement, denial and deterrence’[16] policies initiated abroad. Conversely, New Zealand does maintain strict border control policies which have subsequently resulted in the detainment of some asylum seekers.

Refugee or prisoner?

In 2012, a man referred to as ‘Khalid’, an asylum seeker from Kabul, Afghanistan was stopped at the border in Auckland, questioned, and taken to Mt Eden Prison. Khalid is one of eleven according to the Official Information Act who were held amongst convicted criminals for up to four months.[17] Section 128 of the Immigration Act 1987 allows for the detainment of asylum seekers under special circumstances.[18] Such detention must accord with the UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers.[19] Two laws in support of detention have raised concern as to whether New Zealand is violating its international human rights obligations. Firstly, the Immigration Act 2009 which increased discretionary powers to detain and extend the detention of migrants. Secondly, s 317(a) of the Immigration Act 2013, which legalises indefinite mandatory detention of mass arrivals of 30 people or more. While mandatory detention has yet to be implemented, New Zealand has detained asylum seekers on an individual basis. New Zealand held between 5-14 detainees from 2005 for durations of 6-12 weeks.[20]

3
https://www.radionz.co.nz/news/national/312170/asylum-seeker-forced-to-take-part-in-fights-at-mt-eden-prison

Protecting or detaining?

There are several factors which legitimise these detention policies. Firstly, as Jacinda Ardern stated in a 2017 press release, mandatory detention policy for ‘mass arrivals’ is a response to the growing problem of human trafficking and people smuggling both targeting and taking advantage of vulnerable groups.[21] Therefore, mandatory detention is not only a deterrent to such illegal activity but can protect those vulnerable to people-smuggling. This rhetoric reflects Australia’s tightening immigration policies in light of the influx of ‘boat people’ to Australian shores.[22]

Secondly, New Zealand has a legal threshold for refugee intake, with a well-established Refugee Quota Programme and a Refugee Resettlement Programme. This Resettlement strategy promotes five key principles of self-sufficiency, participation, health and wellbeing, education and housing, beginning with a six-week integration programme at Mangere Resettlement Centre.  However, with limited resources, the government has limited capacity to cater adequately to the nuanced needs of refugees. For this reason, New Zealand cannot accept mass arrivals of asylum seekers and guarantee essential protection, care and support without jeopardising resettlement programmes aimed at delivering better outcomes for refugees settling in New Zealand.

The third justification for discretionary or mandatory detention is to effectively manage mass arrivals while upholding the integrity and efficiency of New Zealand’s immigration system and respecting the asylum application procedure.

The penultimate purpose for detention is to eliminate any suspected threat of risk to national security or public safety that an asylum seeker may present. These threats are determined at the discretion of state officials. The aim is to “safeguard the integrity of the nation’s borders and to protect the…public from the entry of people who (may) have serious criminal backgrounds.”[23] As a sovereign nation, New Zealand seeks to balance the fundamental right to control who enters into its borders with New Zealand’s international human rights obligations.[24] While strict immigration policies remain legitimate for national security, this risk to public safety by asylum seekers has yet to occur.[25]

Finally, with the rise of asylum seekers, it has been argued that strict immigration policies like detention may act as a deterrent to ensure two things. Firstly, that New Zealand doesn’t set a precedent that will open the floodgates to asylum seekers in New Zealand. Secondly, it ensures that unauthorised persons do not attempt to use New Zealand as a backdoor into Australia.[26]

New Zealand is not the only country to detain asylum seekers. Australia’s refugee and asylum seeker policies are some of the toughest in the world, designed to deter people from arrival by boat and to prevent the possible floodgates of illegal migrants. However, this may be generated by a moral panic for political gain rather than evidenced by an actual threat.[27] Contrary to public perception, asylum-seekers made less than 7% of the immigration intake in 2012; 90% of those asylum seekers were deemed non-threatening and received refugee status. With the shift in immigration policy, Australia now has one of the most restrictive detention systems in the world. In 2014, asylum-seekers were detained on average for seven months.[28] As of 2014, there are 5,867 people detained in immigration detention centres with 1,012 in Nauru and 1,353 on Manus Island in Papa New Guinea[29]. Asylum seekers arriving by boat are detained, many of whom are legally eligible for refugee status.

Similar tough immigration policies include the Trump administration’s zero-tolerance immigration policy, which is systematically separating and detaining those seeking asylum in the United States. New Zealand has condemned both states’ immigration policies, even offering to take 150 asylum seekers from Manus Island.[30] Despite this condemnation, there are three stark similarities in the situation in the United States and New Zealand. Firstly, while there will always be attempts of illegal immigration for economic purposes, within those groups currently detained in both the United States and New Zealand, are asylum seekers who have the right under Article 31 of the Refugee Convention against arbitrary detention and may not be properly distinguished from illegal immigrants.[31] Secondly, both nations currently have legislation which authorises such detention despite its violation of international law. Thirdly, and fundamentally, both asylum seekers in the United States and New Zealand have the right to seek refuge under Article 1 of the Refugee Convention.

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https://www.radionz.co.nz/international/pacific-news/332854/un-told-australian-refugee-policy-punitive

Detention without just cause?

There are several justifications for the detainment of asylum-seekers and New Zealand has significantly less harsh immigration policies in comparison to other countries. However, there are also several reasons why New Zealand’s detainment policies have raised concern. The main reason is the violation of fundamental international human rights. Article 14(1) of the Universal Declaration of Human Rights 1948, which states that “everyone has the right to seek and to enjoy in other countries asylum from persecution,”[32] obliges New Zealand, a proud signatory of this Declaration, to allow asylum seekers this right to a refuge. Further international conventions seek to uphold human dignity and condemn arbitrary detention practices, such as UNHCR Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum Seekers and Alternatives to Detention, 2012. These guidelines not only prohibit the detention of asylum seekers for deterrence but prohibits detention based on an asylum seekers mode of arrival.[33] They call into question New Zealand’s current mandatory indefinite detention of “mass arrivals” under s 317(a) of the Immigration Act 2013. While Article 31(2) of the Refugee Convention allows for detention upon ‘necessity’, such as for the protection of national security and public order, research indicates that such a threat has “yet to occur”[34] and “should not be used to undermine the rights of refugees.”[35] Therefore, the establishment of such policies for national security violates international conventions which condemn detention which is either inappropriate, unjust, or unreasonable.[36]

The second major concern over New Zealand’s detainment is the lack of procedural safeguards and access to the due process associated with such practices.[37] Amnesty International Chief Executive Grant Bayldon notes that detained people should have good access to lawyers and interpreters, and shouldn’t be detained alongside remand prisoners and convicted criminals.[38] Upon claiming asylum, claimants have the right to legal representation or legal aid to help file their asylum claim. Furthermore, asylum-seekers have the right to legal counsel if detained. Currently, asylum-seekers in detention are not guaranteed proper representation from immigration lawyers, they have limited time with their lawyers and interpretation services, and immigration officers and judges are not reviewing the appropriateness of their detention conditions.[39]

Typically 14.4% of asylum seekers are held in detention for 6-12 weeks. Of that 4.4 % end up receiving protected refugee status post-detention.[40] Reference to Khalid’s experience highlights the third concern in New Zealand’s detainment practise. Asylum seekers are treated as ‘prisoners on remand’ as opposed to vulnerable individuals in need of support services. Section 203 (b) of the Corrections Act 2004, allows asylum seekers to be detained and treated as criminals who are only detained in separate facilities away from convicted criminals where convenient.[41] Khalid, kept in Mt Eden Corrections was kept in a cell with a convicted criminal and “(quickly) realised the only way to survive in MT Eden was to attach to a stronger person” and adapt to the prison culture.

The lack of public awareness of such practices raises the fourth concern, being the lack of transparency regarding the current state of detainment of asylum seekers and the inability to obtain information and statistics of those currently detained. Access to this public information is limited due to the inaccurate documentation by both the Department of Corrections and the Department of Labour.[42]

The fifth concern of detainment draws from the experiences of those asylum seekers held by the Australian government on Manus Island Detention centre and the negative effects of such total institutionalisation.[43] There are three key negative consequences. First, the re-traumatisation of asylum-seekers who have already been exposed to high levels of trauma due to the threat of persecution. Second, the subsequent depression or perpetuation of mental health issues due to their imprisonment, which may not only jeopardise any potential application process but further disadvantages asylum seekers from any potential community integration. The final negative consequence is the acceptance and adaption of their environment within their indeterminant detainment conditions, seen by Khalid, who survived in prison with his ability to adapt to these harsher conditions.[44] The necessity to adapt violates of the ‘Guidelines’ which prohibits unnecessary, prolonged detention.[45]

The sixth concern is that detainment is not a long-term solution when responding to asylum seekers, who if granted refugee status, must begin the slow process of integration into the community. Detainment does not equip asylum seekers for such conditions. Furthermore, detention may deny asylum seekers the right to the asylum claim process. If detention is not a long-term social or fiscal solution, the general immigration detention policies raise concerns as to whether New Zealand immigration is applying detainment as a ‘quick fix’ option to a nuanced and complex situation.

The final concern over detainment is the political nature of such policies and the societal stigma which may be influencing such policies.[46] The threat of people smugglers and illegal migrants entering New Zealand fuelled amendments Immigration Act 2013 to justify the detainment of “mass arrivals.” In comparison to quota refugees, asylum seekers are negatively framed by the media and the wider public, who have referred to them as “queue jumpers” and “illegal migrants.”[47] The moral panics induced by such rhetoric influences societal perceptions of asylum seekers as a threat and may fuel further discriminatory practises.[48]

The right to refuge

New Zealand has a well-established Refugee Resettlement programme which upholds an effective and supportive community integration process for those forcibly displaced.[49] However, there is concern over the current state of our immigration policies, which may discriminate against asylum seekers and limit the extent to which New Zealand aids asylum seekers in comparison to quota refugees. Asylum seekers, like refugees, are incredibly vulnerable, who often live in fear of their lives, may be separated from their families, and often suffer on-going mental and physical health impairments and face ongoing challenges which limit their right to refuge. Not only do asylum seekers have the potential of either detention of deportation upon arrival or during their application process,[50] they often have restricted access to social support services.[51] In comparison, quota refugees have access to social, welfare, educational and family reunification services to enable a safe and supportive community integration process.

Conclusion

“The concept of asylum includes rights relating to entry into a State, a right to remain there, protection from expulsion or refoulement and certain rights while remaining.”[52] There are ongoing public policy challenges when it comes to meeting the needs of asylum seekers. These include ongoing social and political stigma, the lack of adequate resourcing of governmental agencies to cater to their needs, and differential treatment and access to social support services between quota refugees and asylum seekers. However, regardless of such challenges, New Zealand is a proud signatory of various international conventions which fundamentally protect such rights. It is therefore crucial that New Zealand ensures appropriate access to these rights and provides the protection and security accorded to those seeking asylum, without a threat of further persecution or detainment.

 

[1] https://www.vox.com/2018/6/11/17443198/children-immigrant-families-separated-parents

[2] ibid

[3] ibid

[4] Bloom, Alia, Tim O’Donovan, and Martine Udahemuka. “Marking time’: experiences of successful asylum seekers in Aotearoa New Zealand.” In Wellington, Changemakers Refugee Forum. 2013.

[5] http://www.stuff.co.nz/national/crime/90117261/Asylum-seekers-locked-up-in-Auckland-prison-New-Zealands-own-Manus-Island

[6] United Nations High Commissioner for Refugees, “The 1951 Refugee Convention”, http://www.unhcr.org/1951convention/51qanda.html, United Nations High Commissioner for Refugees. (assessed June 16, 2018)

[7] An asylum seeker is someone seeking foreign refuge, however, who hasn’t yet been granted refugee status, or is in the process of claiming refugee or protected persons status. See generally, https://www.immigration.govt.nz/audiences/supporting-refugees-and-asylum-seekers/asylum-seekers

[8] Such as Article 14 of the Universal Declaration of Human Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, and International Covenant on Civil and Political Rights 1966. See generally, https://www.amnesty.org/en/what-we-do/refugees-asylum-seekers-and-migrants/

[9] http://www.unhcr.org/globaltrends2017/

[10] Clayton, Gina. Textbook on immigration and asylum law. Oxford University Press, 2012. P404

[11] Bloom, Alia, Tim O’Donovan, and Martine Udahemuka. “Marking time’: experiences of successful asylum seekers in Aotearoa New Zealand.” In Wellington, Changemakers Refugee Forum. 2013.

[12] Bloom, Alia, Tim O’Donovan, and Martine Udahemuka. “Marking time’: experiences of successful asylum seekers in Aotearoa New Zealand.” In Wellington, Changemakers Refugee Forum. 2013.

[13] Asylum claimants either file upon entry at the border or post-arrival. The process involves firstly lodging an initial claim with subsequent access to legal representation or legal aid, filing a written submission to the refugee status branch, a subsequent interview, release of any further information. Every claimant hopes the final decision will confirm their status as a Conventional refugee. This decision makes take weeks or months.

[14] https://www.amnesty.org/en/what-we-do/refugees-asylum-seekers-and-migrants/

[15]. In 2015, Germany’s asylum intake was 736,740, the US at 559,370. See generally, https://www.immigration.govt.nz/about-us/media-centre/newsletters/settlement-actionz/actionz8/year-summiting-dangerously

[16] https://www.immigration.govt.nz/about-us/media-centre/newsletters/settlement-actionz/actionz8/year-summiting-dangerously

[17] http://www.stuff.co.nz/national/crime/90117261/Asylum-seekers-locked-up-in-Auckland-prison-New-Zealands-own-Manus-Island

[18] Such as on the grounds of identity verification, clarify conditions for application, falsified or misleading documentation, or to protect national security or public order. See generally, Crock, Mary, ed. Protection or punishment?: the detention of asylum-seekers in Australia. Federation Press, 1993.

[19] Frater, Charlotte. “Detention of refugees in New Zealand law: striking a balance between refugee rights and national security.” Victoria U. Wellington L. Rev. 34 (2003): 665

[20]..  From 2005, 14 claimants were detained in penal custody, in 2013, this number was 5, in 2014, at 4 and 2015 at 6, with detainees being held on average between 6-12 weeks.

[21] http://www.stuff.co.nz/national/politics/99395589/Asylum-seekers-and-New-Zealand-Where-does-the-truth-lie

[22] ibid

[23] Pickering, Sharon. Refugees and state crime. No. 21. Federation Press, 2005. P 86

[24] Clayton, Gina. Textbook on immigration and asylum law. Oxford University Press, 2012

[25] https://www.globaldetentionproject.org/countries/asia-pacific/new-zealand#_ftn10

[26] http://www.stuff.co.nz/national/politics/99395589/Asylum-seekers-and-New-Zealand-Where-does-the-truth-lie

[27] Martin, Greg. “Stop the boats! Moral panic in Australia over asylum seekers.” Continuum 29, no. 3 (2015): 304-322.

[28] ibid

[29] https://www.humanrights.gov.au/sites/default/files/FTFAsylumRefugees.pdf

[30] https://www.nzherald.co.nz/world/news/article.cfm?c_id=2&objectid=11944625

[31] Frater, Charlotte. “Detention of refugees in New Zealand law: striking a balance between refugee rights and national security.” Victoria U. Wellington L. Rev. 34 (2003): 669

[32] http://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf

[33]UNHCR ‘Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum Seekers and Alternatives to Detention 2012. http://www.refworld.org/pdfid/503489533b8.pdf

[34], Bloom, Alia, Tim O’Donovan, and Martine Udahemuka. “Marking time’: experiences of successful asylum seekers in Aotearoa New Zealand.” In Wellington, Changemakers Refugee Forum. 2013.

[35] Frater, Charlotte. “Detention of refugees in New Zealand law: striking a balance between refugee rights and national security.” Victoria U. Wellington L. Rev. 34 (2003): 693

[36] https://www.globaldetentionproject.org/countries/asia-pacific/new-zealand#_ftn10

[37] UNHCR ‘Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum Seekers and Alternatives to Detention 2012. http://www.refworld.org/pdfid/503489533b8.pdf

[38] http://www.stuff.co.nz/national/crime/90117261/Asylum-seekers-locked-up-in-Auckland-prison-New-Zealands-own-Manus-Island

[39] http://www.stuff.co.nz/national/crime/90117261/Asylum-seekers-locked-up-in-Auckland-prison-New-Zealands-own-Manus-Island

[40] https://www.globaldetentionproject.org/countries/asia-pacific/new-zealand#_ftn4

[41] https://www.hrc.co.nz/files/5715/0060/6797/ESC_Rights_Discussion_ONLINE.pdf

[42] https://www.globaldetentionproject.org/countries/asia-pacific/new-zealand#_ftn4

[43] Goffman, Erving. Asylums: Essays on the social situation of mental patients and other inmates. Routledge, 2017.

[44] http://www.stuff.co.nz/national/crime/90117261/Asylum-seekers-locked-up-in-Auckland-prison-New-Zealands-own-Manus-Island

[45] UNHCR ‘Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum Seekers and Alternatives to Detention 2012. http://www.refworld.org/pdfid/503489533b8.pdf

[46] Manuel Herz. “Refugee Camps or Ideal-Cities in Dust and Dirt”, http://www.holcimfoundation.org/Portals/1/docs/F07/WK-Temp/F07-WK-Tempherz02.pdf

[47] Bloom, Alia, Tim O’Donovan, and Martine Udahemuka. “Marking time’: experiences of successful asylum seekers in Aotearoa New Zealand.” In Wellington, Changemakers Refugee Forum. 2013.

[48] Bloom, Alia, Tim O’Donovan, and Martine Udahemuka. “Marking time’: experiences of successful asylum seekers in Aotearoa New Zealand.” In Wellington, Changemakers Refugee Forum. 2013.

[49] https://www.immigration.govt.nz/about-us/what-we-do/our-strategies-and-projects/refugee-resettlement-strategy/rebuilding-the-mangere-refugee-resettlement-centre

[50] Stephen Dunsten et al. “Refugee Voices: A Journey Towards Resettlement” Department of Labour, 2004

[51] Bloom, Alia, Tim O’Donovan, and Martine Udahemuka. “Marking time’: experiences of successful asylum seekers in Aotearoa New Zealand.” In Wellington, Changemakers Refugee Forum. 2013.

[52] https://www.hrc.co.nz/files/5715/0060/6797/ESC_Rights_Discussion_ONLINE.pdf

The Public Policy Club is a non-partisan club at the University of Auckland that aims to encourage, educate and involve students from all backgrounds in the education and development of political knowledge. The views and opinions expressed in this article are those of the author and do not necessarily reflect those of PPC.

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