Warning on migrant detentions

By HELEN TUNNAH

Lawyers have "grave concerns" about the mass detention of asylum seekers continuing, despite a High Court ruling that such a policy is unlawful.

Refugee lawyer Deborah Manning said an Immigration Service policy introduced last month still amounted to a wholesale detention regime and could be subject to court scrutiny.

The service tightened its detention procedures after last year's terrorist attacks in the United States.

It stopped releasing most newly arrived asylum seekers into the community, and began detaining almost all of them at the Mangere Accommodation Centre or the Auckland Central Remand Prison.

The policy was challenged in the High Court and was ruled unlawful.

Justice David Baragwanath, in June, said the mass detention policy breached New Zealand's obligations under the United Nations Convention on Refugees, which is recognised in law here.

The Government is appealing against the ruling, but Ms Manning said Justice Baragwanath's decision should be adhered to pending the outcome of the appeal.

She said Immigration's replacement operational instruction might be inconsistent with the court ruling.

Figures obtained by the Herald from the service show almost all asylum seekers are being detained.



Of the 28 people who have claimed asylum at the border since Justice Baragwanath's ruling, just two have been issued entry permits and released on arrival.

Of the others, 25 were detained at Mangere and one was held in jail.

The detentions have lasted up to seven weeks, even though Justice Baragwanath also eased the way for asylum seekers to be conditionally released on bail.

Ms Manning said the court decision seemed to have had little impact on the way the service worked.

"We've got grave concerns about the validity of the new operational instruction," she said.

"My concerns are that everybody coming into New Zealand without a passport is continuing to be detained.

"The operational instruction is obviously not doing its job if the officials at the airport are continuing to detain everyone.

"All those kinds of documents are subject to review in the High Court if anyone chose to take that action."

The new instruction allows for detention "where the identity of the person is unknown and, therefore, the real risks of offending or absconding cannot be ascertained at the time".

In court, Justice Baragwanath said not having identification papers was one factor to be considered when deciding whether a person should be detained, but not the only factor.

That interpretation is in line with international law, which recognises refugee claimants seldom travel with proper documentation or identification papers.

Justice Baragwanath said New Zealand had chosen to recognise the convention in its immigration law.

He also said officials must use a "true discretion" when deciding whether to detain asylum seekers.

The judge was given no evidence of an absconding problem if asylum seekers were released pending decisions on their refugee status.

Immigration Minister Lianne Dalziel said Crown Law Office advice had been sought before the replacement instruction was drafted.

"I'm satisfied we're complying with the requirements of the judgment and we still intend to appeal."

The court had ruled officials had to make a judgment about who was a risk, she said. The people held since the end of June were generally Middle Eastern young men.

"I'm sorry, there is always going to be risk profiling. We do have to exercise caution ... If we don't know who they are, how can we make that call?"

Feature: Immigration