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  • repealed
  • Immigration Act 1987: repealed, at 2 am on 29 November 2010, by section 404 of the Immigration Act 2009 (2009 No 51).
128B Detention of persons whose eligibility for permit is not immediately ascertainable
  • (1) This section applies to every person who arrives in New Zealand from another country (not being a person who is exempt under section 11 or section 12 of this Act from the requirement to hold a permit) where—

    • (a) an immigration officer or any member of the Police has reason to suspect that the person may be a person to whom section 7(1) of this Act applies; or

    • (b) the person has no appropriate documentation for immigration purposes, or any such documentation held by the person appears to be false,—

    and a decision as to whether or not to grant that person a permit or, in the case where the person holds a pre-cleared permit, as to whether or not to revoke that permit, has not been made because the person's status under section 7(1) of this Act cannot be immediately ascertained.

    (2) Any person to whom this section applies (including any such person who holds a pre-cleared permit) 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 is not liable to be dealt with under any of the provisions of Part 2 of this Act.

    (3) Any person to whom this section applies may be detained by any member of the Police and placed in custody in accordance with this section while a determination is made as to whether or not section 7(1) of this Act applies to that person.

    (4) Every such determination shall be made by the Minister acting on the advice of the Commissioner of Police, or of such other adviser as the Minister thinks appropriate in the circumstances of the case.

    (5) This section shall continue to apply to any person until—

    • (a) a determination is made that the person is not a person to whom section 7(1) applies, in which case an immediate determination must be made as to whether or not to grant the person a permit, and either—

      • (i) the person must be released immediately, if the person is granted a permit or already holds a pre-cleared permit; or

      • (ii) if no permit is granted to the person, and the person does not already hold a pre-cleared permit, the person is liable to be dealt with under section 128; or

    • (b) a determination is made that the person is a person to whom section 7(1) of this Act applies, in which case the person may from the time of that determination be treated as a person to whom section 128 of this Act applies and may be retained in custody under subsection (5) of that section pending the person's departure from New Zealand on the first available craft; or

    • (c) the person requests removal from New Zealand, in which case the person may be treated as a person to whom section 128 of this Act applies and may be retained in custody under subsection (5) of that section pending the person's departure from New Zealand on the first available craft.

    (6) Where a person to whom this section applies is detained by any member of the Police and placed in custody the following provisions shall apply:

    • (a) the Minister shall take all practicable steps to determine, as speedily as may be possible in the circumstances, whether or not the person is a person to whom section 7(1) of this Act applies:

    • (b) where the Minister considers that there may be reasonable grounds for believing that the person is a person to whom section 7(1) of this Act applies, the Minister shall give that person an opportunity to comment on or rebut those grounds:

    • (c) a member of the Police or an immigration officer shall, not later than 48 hours after the person is taken into custody, apply to a District Court Judge for a warrant of commitment in the prescribed form authorising the detention in custody of that person for a period of 28 days in the first instance pending a determination as to whether or not the person is a person to whom section 7(1) of this Act applies.

    (7) Every person who is placed in custody under subsection (3) or subsection (6)(c) 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 Secretary of Labour; or

      • (ii) a Police station; or

      • (iii) at the direction of a Judge, in a prison.

    (8) [Repealed]

    (9) A warrant of commitment issued under subsection (6)(c) of this section 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) the expiry of 28 days from the date of the issue of the warrant, or the expiry of such further period for which the warrant may be extended under subsection (10) of this section; or

    • (b) the person ceases to be a person to whom this section applies pursuant to subsection (5) of this section.

    (10) Where a person detained in custody pursuant to a warrant of commitment issued under subsection (6)(c) of this section is not, before the end of the 28-day period specified in that subsection, either released and given a permit or treated as a person to whom section 128 of this Act applies,—

    • (a) the person shall again be brought before a District Court Judge by an immigration officer or a member of the Police, and the Judge shall consider the question of that person's continued custody under the warrant; and

    • (b) thereafter, while the person remains in custody, the person shall be brought before a District Court Judge at intervals of not more than 7 days for further consideration of that question.

    (11) Where a person is brought before a District Court Judge under subsection (10) of this section, the Judge shall extend the warrant if the Judge is satisfied the person is still a person to whom this section applies.

    (11A) If a person to whom this section applied is subsequently treated as a person to whom section 128 applies, that section applies as if any warrant of commitment issued under subsection (6)(c) of this section were a warrant of commitment issued under section 128(7).

    (12) No person detained pursuant to this section shall be granted bail.

    Section 128B: inserted, on 18 November 1991, by section 38 of the Immigration Amendment Act 1991 (1991 No 113).

    Section 128B(1): amended, on 15 September 1993, by section 14(1) of the Immigration Amendment Act 1993 (1993 No 100).

    Section 128B(2): amended, on 15 September 1993, by section 14(2) of the Immigration Amendment Act 1993 (1993 No 100).

    Section 128B(5)(a): amended, on 15 September 1993, by section 14(3) of the Immigration Amendment Act 1993 (1993 No 100).

    Section 128B(5)(a): substituted, on 16 June 1999, by section 39(1) of the Immigration Amendment Act 1999 (1999 No 16).

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

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

    Section 128B(8): repealed, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

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

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

    Section 128B(11A): inserted, on 16 June 1999, by section 39(2) of the Immigration Amendment Act 1999 (1999 No 16).