Immigration Act 1987

  • repealed
  • Immigration Act 1987: repealed, at 2 am on 29 November 2010, by section 404 of the Immigration Act 2009 (2009 No 51).
128 Detention and departure of persons refused permits, etc
  • (1) This section applies to every person (other than a person to whom section 128B or section 129 of this Act applies) who—

    • (a) arrives in New Zealand from another country; and

    • (b) is not exempt under this Act from the requirement to hold a permit; and

    • (c) either—

      • (i) fails to apply in the prescribed manner for a permit; or

      • (ii) is refused a permit; or

      • (iii) is a stowaway; or

      • (iv) is a person whose pre-cleared permit has been revoked by an immigration officer pursuant to section 35F of this Act.

    (2) For the purposes of this section, a stowaway shall be deemed to arrive in New Zealand at the time when the craft on which the stowaway is travelling crosses into the territorial limits of New Zealand, and, subject to subsections (3), (13) and (14) of this section, this section shall apply to the stowaway while the stowaway remains within those limits.

    (3) This section shall cease to apply to any person (including any stowaway), on the expiration of 72 hours after the time when that person first reports or presents to an immigration officer after arriving in New Zealand from another country, unless that person is sooner detained under this section.

    (4) Any person to whom this section applies shall be deemed for the purposes of this Act to be in New Zealand unlawfully, but, for so long as this section applies to that person, that person shall not be liable to be dealt with under any of the provisions of Part 2 of this Act.

    (5) Subject to subsection (7), on the request of an immigration officer to a member of the police, any person to whom this section applies must be detained by a member of the police and placed in custody pending that person's departure from New Zealand on the first available craft.

    (6) Every person who is placed in custody under subsection (5) of this section and is to be detained overnight shall be detained,—

    • (a) in the case of a person under 17 years of age who is not married or in a civil union, in—

      • (i) any residence (within the meaning of section 2 of the Children, Young Persons, and Their Families Act 1989) or other premises under the control of, or approved by, the chief executive of the department for the time being responsible for the administration of the Children, Young Persons, and Their Families Act 1989; or

      • (ii) any other premises agreed to by the parent or guardian of that person and an immigration officer; or

    • (b) in any other case, in—

      • (i) any premises approved by the chief executive of the Department of Labour; or

      • (ii) a Police station.

    (7) Where a person to whom this section applies is to be detained for more than 48 hours after the time of that person's detention by a member of the Police under subsection (5) of this section, an immigration officer or a member of the Police shall apply to the Registrar (or, in the Registrar's absence, the Deputy Registrar) of a District Court for a warrant of commitment in the prescribed form authorising the detention for a period not exceeding 28 days of that person in a prison or some other premises approved for the purpose by the Registrar (or Deputy Registrar), and the Registrar (or Deputy Registrar) shall issue such a warrant accordingly.

    (8) Every application under subsection (7) of this section shall be made on oath, and shall include a statement of the reasons why the person is a person to whom this section applies.

    (9) Every such warrant of commitment shall authorise the manager of the prison or the person in charge of the other premises to detain the person named in it until—

    • (a) required by a member of the Police to deliver up that person in accordance with subsection (11) of this section; or

    • (b) the release of the person in accordance with subsection (14)(a); or

    • (c) the expiry of the period for which detention is then authorised by the warrant (as determined having regard to any extension or further extension of the warrant granted under subsection (13B) of this section, and to subsection (16) of this section, and, where appropriate, to—

    whichever first occurs.

    (10) [Repealed]

    (11) When a craft becomes available to take from New Zealand any person to whom this section applies who is in custody pursuant to a warrant of commitment issued under subsection (7) of this section, and it is practicable in all the circumstances for the person to leave on that craft, the manager of the prison or the person in charge of the other premises shall, on being required in writing by a member of the Police to do so, deliver the person into the custody of the member of the Police, who shall escort the person or arrange for the person to be escorted to the seaport or airport and ensure that the person is placed upon the craft and detained there until the craft leaves New Zealand.

    (12) If, for any reason, the craft ceases to be available to take the person from New Zealand or is, or is likely to be, delayed in New Zealand for more than 24 hours, or if for any other reason the person is unable to leave New Zealand at the expected time, the person shall be returned to the custody from which the person was taken, and for that purpose the warrant of commitment shall be deemed still to be of full force and effect.

    (13) Where it becomes apparent to an immigration officer that a person detained in custody under a warrant of commitment issued under subsection (7) is, or is likely to be, unable to leave New Zealand before the expiry of the period for which detention is then authorised by the warrant (as determined having regard to the matters referred to in subsection (9)(c)), the immigration officer may either—

    • (a) apply to a District Court Judge for an extension, or further extension, of the warrant; or

    • (b) notify in writing the manager of the prison or person in charge of the other premises in which the person is detained that the person should be released.

    (13A) An application for extension or further extension of a warrant under subsection (13)(a) must—

    • (a) be made on oath; and

    • (b) include a statement of the reasons why the extension or further extension is requested.

    (13B) On an application for the extension or further extension of a warrant of commitment under subsection (13)(a), the Judge may, if satisfied that the person is still a person to whom this section applies, extend or further extend the warrant—

    • (a) for a further period not exceeding 7 days; or

    • (b) for such longer period as the Judge thinks necessary in the circumstances to allow all the persons in the group concerned to be properly dealt with, in any case where the person detained under the warrant is a member of a group of people—

      • (i) who arrived in New Zealand on the same ship or aircraft; and

      • (ii) all or most of whom are persons to whom this section applies.

    (14) The manager of the prison or person in charge of the other premises in which a person is detained under a warrant of commitment must release the person from custody—

    • (a) on receiving written notification from an immigration officer under subsection (13)(b) that the person should be released; or

    • (b) if not earlier released, on the expiry of the period for which detention is authorised under the warrant (as determined having regard to section 128A(2)(a) and (12), where appropriate, and to any extension or further extension of the warrant granted under subsection (13B)).

    (14A) On the release of a person under subsection (14),—

    • (a) Part 2 applies in respect of the person; and

    • (b) this section ceases to apply in respect of the person.

    (15) A person who is detained under this section must not be granted bail, but may be released under section 128AA or section 128A.

    (16) The period for which detention is authorised by a warrant of commitment issued under subsection (7) must be reckoned exclusive of any period commencing on the date on which the person to whom the warrant relates escapes from lawful custody and ending 72 hours after the date on which the person is again taken into custody under this Act.

    Section 128(1): amended, on 18 November 1991, by section 37(1) of the Immigration Amendment Act 1991 (1991 No 113).

    Section 128(1)(c)(iii): substituted, on 15 September 1993, by section 13 of the Immigration Amendment Act 1993 (1993 No 100).

    Section 128(1)(c)(iv): inserted, on 15 September 1993, by section 13 of the Immigration Amendment Act 1993 (1993 No 100).

    Section 128(3): amended, on 18 June 2002, by section 9(1) of the Immigration Amendment Act 2002 (2002 No. 22).

    Section 128(5): substituted, on 18 June 2002, by section 9(2) of the Immigration Amendment Act 2002 (2002 No 22).

    Section 128(6)(a)(i): substituted, on 1 November 1989, by section 456(1) of the Children, Young Persons, and Their Families Act 1989 (1989 No 24).

    Section 128(6)(b)(i): substituted, on 16 October 1989, by section 2(8)(a) of the Labour Department Act Repeal Act 1989 (1989 No 82).

    Section 128(6)(a): amended, on 26 April 2005, by section 7 of the Relationships (Statutory References) Act 2005 (2005 No 3).

    Section 128(6)(a)(i): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

    Section 128(7): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

    Section 128(9): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

    Section 128(9)(c): amended, on 18 November 1991, by section 37(2) of the Immigration Amendment Act 1991 (1991 No 113).

    Section 128(9)(b): substituted, on 16 June 1999, by section 37(1) of the Immigration Amendment Act 1999 (1999 No 16).

    Section 128(9)(c): substituted, on 16 June 1999, by section 37(1) of the Immigration Amendment Act 1999 (1999 No 16).

    Section 128(9)(c): substituted, on 18 June 2002, by section 9(3) of the Immigration Amendment Act 2002 (2002 No 22).

    Section 128(10): repealed, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

    Section 128(11): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

    Section 128(13): amended, on 18 November 1991, by section 37(3) of the Immigration Amendment Act 1991 (1991 No 113).

    Section 128(13): substituted, on 16 June 1999, by section 37(2) of the Immigration Amendment Act 1999 (1999 No 16).

    Section 128(13): amended, on 18 June 2002, by section 9(4) of the Immigration Amendment Act 2002 (2002 No 22).

    Section 128(13)(b): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

    Section 128(13A): inserted, on 16 June 1999, by section 37(2) of the Immigration Amendment Act 1999 (1999 No 16).

    Section 128(13B): inserted, on 16 June 1999, by section 37(2) of the Immigration Amendment Act 1999 (1999 No 16).

    Section 128(14): amended, on 18 November 1991, by section 37(3) of the Immigration Amendment Act 1991 (1991 No 113).

    Section 128(14): substituted, on 16 June 1999, by section 37(2) of the Immigration Amendment Act 1999 (1999 No 16).

    Section 128(14): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

    Section 128(14A): inserted, on 16 June 1999, by section 37(2) of the Immigration Amendment Act 1999 (1999 No 16).

    Subsection 128(15): inserted, on 18 November 1991, by section 37(4) of the Immigration Amendment Act 1991 (1991 No 113).

    Section 128(15): substituted, on 18 June 2002, by section 9(5) of the Immigration Amendment Act 2002 (2002 No 22).

    Section 128(16): inserted, on 18 June 2002, by section 9(5) of the Immigration Amendment Act 2002 (2002 No 22).