Haven or Hell? The Criminal Detention of Asylum Seekers in New Zealand

BY BEN GOH

“To be treated as a human being” was the sole pleading of a man who had discarded everything to seek sanctuary in New Zealand. In a report released in May, Amnesty International painted a sombre picture of the plight of asylum seekers in prisons across the country.[1] From 2015 to 2020, 86 such people have been incarcerated for months or even years despite the lack of any criminal charges and a UN warning to desist. While the majority of asylum seekers in New Zealand are never detained, the report highlights some sobering shortcomings in a country that is otherwise recognised as a paragon of human rights and multiculturalism.

For many asylum seekers, their journey to New Zealand invariably begins with the hope of a better life and future. When asked about their view of the country, some have pointed to New Zealand’s “excellent” human rights record and recalled the nation's resolve and solidarity in the wake of the Christchurch mosque attacks.[2] For one man, his decision to flee persecution and turn to New Zealand was spurred on by its recognition “around the world as a country that observes and respects human rights.”[3]

Historically, New Zealand has received global commendation for its treatment of prospective refugees. An oft-cited example is the 2001 settlement of 150 Afghan asylum seekers aboard the Norwegian ship MV Tampa. There, New Zealand granted the vessel access to territorial waters where Australia did not and later made efforts to reunite the refugees with their families.

Today, New Zealand continues to maintain an annual refugee quota of up to 1,500 places in accordance with its obligations under the UNHCR (United Nations High Commissioner for Refugees) refugee resettlement programme.[4] Despite this, there is a clear disparity between the treatment of asylum seekers who have been predesignated as refugees under this scheme and those who apply for asylum upon arrival in New Zealand.

Arrival

In New Zealand, a person who applies for asylum on arrival can be recognised as a refugee on application to the Refugee Status Branch. As it stands, the ordeal of many asylum seekers can begin at the airport. There, they may be refused entry if they lack valid identification and be subject to deportation or “turnaround” where they may be detained in the interim.[5] Under the Immigration Act 2009,  asylum seekers may be detained for up to four hours where an interview typically takes place to determine the next step. Options include release into the community with conditions or reporting requirements and imprisonment under a “warrant of commitment.”[6]

A refugee and human rights lawyer likened this process to the “Wild West” by virtue of the lack of legal representation and transparency.[7] Under section 23 of the New Zealand Bill of Rights Act (NZBORA), detainees must be promptly informed as to the reasons for their arrest or detention. They also have the right to legal counsel (and to be informed of this right) and recourse by way of habeas corpus to challenge the validity of their arrest or detention. Despite its importance however, Immigration New Zealand does not officially regard the initial interview as a form of detention such as to justify legal representation. Although translation services are available they have variously been described as “really bad, inappropriate and inaccurate” and often unable to translate across dialects.[8] Oblivious to their legal rights and New Zealand customs, asylum seekers can be committed to prison completely unaware as to the reasons why.

Detainment

Under the Immigration Act, detainment will be available where an asylum seeker is deemed to be at risk of absconding within the country. Concerningly, it may also be done pending the establishment of the applicant’s identity or based on sweeping “threat or risk to security” grounds.[9] This proves problematic when displaced people arrive in New Zealand from countries lacking a functional government from which to trace identification.The detainment of asylum seekers on such broad security grounds also flies in the face of the presumption of liberty and the UN’s recommendation that imprisonment should be an option of last resort.

In a report presented to the Human Rights Council in 2015, the UN Working Group on Arbitrary Detention (WGAD) expressed concerns at New Zealand’s use of prisons to hold asylum seekers awaiting the resolution of their claims. The Immigration Act 2009 allows for detainment of up to 28 days, indefinitely renewable upon further warrant of commitment hearings.[10] There, asylum seekers may be ostensibly represented by duty lawyers who commonly have a background in criminal matters rather than any expertise in immigration or refugee law. Two refugee lawyers described the hearings as “window dressing” with no meaningful access to justice while a District Court Judge characterised them as a “rubber-stamping exercise” where expedience is paramount.[11]

While imprisoned, asylum seekers are often detained with the general population and double bunked with criminal remand prisoners.[12] There, they may be subjected to bullying, threats and assault. In some instances, this has culminated in alleged rape and coercion into prison “fight clubs.”[13] In one case, a man’s hand was broken in an altercation with a cellmate. By then, he had spent over three years of his life in prison awaiting the outcome of his asylum claim.[14] Prospects are sufficiently bleak to induce suicidal ideation in many, with one man attempting to kill himself after being detained for seven months in Mt Eden Prison.[15]  

Such treatment is especially egregious considering the tragic circumstances that most asylum seekers already must contend with. Victims of the conditions described above include reported survivors of torture, civil war escapees and asylum seekers from other destablised countries where there is little, if any, adherence to the rule of law. When challenged by Amnesty International, Immigration New Zealand admitted to imprisoning several people, later recognised as refugees, who were past survivors of serious trauma. Any detention of such especially vulnerable individuals in a criminal justice facility is contrary to international human rights standards.

International Law

New Zealand is a signatory to several human rights conventions aside from the 1951 Refugee Convention. Article 10 of the International Covenant on Civil and Political Rights (ICCPR) requires that unconvicted persons be segregated from other prisoners and be subject to different treatment befitting their status. Under Article 31 of the 1951 Convention, refugees are also generally not punishable because of any illegal entry or presence where their life or freedom was threatened in their home country. The right to freedom from inhuman or degrading treatment is also mandated in many international instruments including the seminal Universal Declaration of Human Rights (UDHR).[16] The declaration also guarantees the right to seek and enjoy asylum from persecution.[17] In prison, this can become impracticable where asylum seekers are deprived of their phones and bereft of adequate translation services to make any meaningful headway in furthering their claims.

Under the UNHCR Detention Guidelines, detention is an exceptional measure that should only be employed where it is deemed to be necessary, reasonable and proportionate.[18] WGAD similarly recommends that immigration detention be only permissible as a last resort for the shortest possible time.[19] According to Amnesty International Executive Director Meg de Ronde and the Asylum Seekers Support Trust (ASST), this is a far cry from the reality in New Zealand where detainment is often the first option.[20] 

New Zealand’s warrant of commitment system also runs the risk of being considered arbitrary under WGAD guideline 6. At the very least, decisions to detain or to extend detention must be subject to minimum procedural safeguards.[21] This is clearly not satisfied by any mere “rubber-stamping exercise.”

Importantly, the 1951 Convention affirms the right of asylum seekers to not be returned to countries where they may face serious threats to their life or freedom.[22] This guarantee is known as the right of non-refoulement and is a fundamental pillar of customary international law applying to all states. Its significance is such that it is arguably a principle of jus cogens that cannot be violated.

However, asylum seekers are prevented from availing themselves of this protection if they are determined to be a danger to the security of the host country.[23] In Amnesty International’s report, an interviewee was incorrectly identified by Immigration as a convict due to a breakdown in interpretation. In the worst failures of fair process, whether at the initial interview stage or otherwise, there is a real risk that the principle of non-refoulement will be contravened.

 

Reform

Given New Zealand’s human rights commitments, the next question must be how best to realise those obligations and uphold the interests and safety of asylum seekers. In their report, Amnesty International makes several recommendations the first of which is the discontinuance of the use of criminal justice facilities to detain asylum seekers.

As far as the Immigration Act, the key areas of proposed reform are the inclusion of an explicit presumption of liberty as well as a total maximum detention period. If detention is resorted to, any restrictions should accord with international human rights standards with reasonable access to legal, interpretive and other services.  Amnesty International also recommends human rights and asylum-specific training of agents where competency has been found to be lacking. This extends to actors such as Immigration New Zealand employees, lawyers and Police Officers.

Further, asylum seekers who have been subjected to human rights violations while in custody must have access to prompt and effective remedies. Any allegation must also be impartially and independently investigated. Implicit in this is the accountability of those responsible. Troublingly, the Immigration Act precludes certain rights of judicial review long used to ensure procedural integrity by public bodies.[24]

The availability of alternatives to detention is also of great importance. Under the Immigration Act, asylum seekers may be released to a specified place of residence within the community.[25] Currently, ASST is the only community-based hostel in New Zealand that provides emergency style housing to asylum seekers. However, as of 2013, ASST has been entirely financed by donations since the government’s cessation of funding.[26]  Rectification of this would provide greater certainty and opportunity for asylum seekers hoping for options in lieu of imprisonment.

As a signatory of various conventions but also as a country which prides itself on its protection of human rights, New Zealand has a duty to uphold the integrity of any procedure involving vulnerable people. In the context of asylum seekers, as far as is practicable, this must involve a closer examination of the determination and conditions of detainment. At the heart of the issue is the dignity of the person. To be treated humanely and be given a fair chance is the least that can be expected.

For more information regarding this issue and ways to support those advocating for change, please consider viewing the work of Amnesty International’s New Zealand branch.

The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information.

Featured image source: Villawood IDC.

[1] Amnesty International Please take me to a safe place: The imprisonment of asylum seekers in Aotearoa New Zealand (18 May 2021).

[2] Above n 1.

[3] Above n 1.

[4] Immigration New Zealand “New Zealand Refugee Quota Programme” <immigration.govt.nz>.

[5] Section 310.

[6] Section 311.

[7] Above n 1.

[8] A Bloom & M Udahemuka (2014) ‘Going through the doors of pain’: asylum

seeker and Convention refugee experiences in Aotearoa New Zealand, Kotuitui: New Zealand

Journal of Social Sciences Online, 9:2, 70-81, DOI: 10.1080/1177083X.2014.939664.

[9] Section 309.

[10] Section 316.

[11] Above n 1.

[12] Above n 1.

[13] Above n 1.

[14] Above n 1.

[15] Miriam Burrell “Allegations of rape, assault of asylum seeers in prison, new report reveals” The New Zealand Herald (online ed, 17 May 2021).

[16] Article 3.

[17] Article 14.

[18] Guideline 4.

[19] Above at 1.

[20] Above at 1.

[21] Guideline 7.

[22] Article 33.

[23] Article 33(2).

[24] Section 249.

[25] Above n 6.

[26] Above n 1.