Y4.15 Detention of persons whose eligibility for permit is not immediately ascertainable

Immigration Act 1987 s 128B

1. A person who arrives at the border may be detained if:
   1. that person is not exempt from having to hold a permit; and
   2. there is reason to suspect that:
      • section 7(1) of the Immigration Act 1987 may apply to that person; or
      • that person has no appropriate immigration documentation; or
      • any such documentation held appears to be false; and
   3. a decision whether or not to grant that person a permit, or if the person holds a pre-cleared permit, to revoke that permit, has not been made because that person's status under section 7(1) cannot be immediately ascertained.
2. Such persons (including those who hold pre-cleared permits) are deemed to be in New Zealand unlawfully, but as long as they are subject to section 128B, Part II of the Immigration Act 1987 does not apply to them.
3. A person who is to be detained under section 128B should first be given the option of departing voluntarily rather than being detained in custody.
4. A warrant of commitment must be obtained if the person is to be detained for more than 48 hours.
5. If a warrant of commitment is necessary, it must be applied for within 48 hours of the person being taken into custody.
6. If it is considered that there are reasonable grounds for believing that section 7(1) applies to the person, the person must be given an opportunity to comment on or rebut those grounds.
7. Section 128B continues to apply to the person until:
   1. a determination is made that the person is not subject to section 7(1), in which case:
      • an immediate determination must be made as to whether or not to grant the person a permit; and
      • (if the person is granted a permit or already holds a pre-cleared permit) the person must be released immediately; or
      • (if no permit is to be 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
   2. a determination is made that section 7(1) applies to the person, in which case the person may then be:
      • treated as if section 128 applied to them; and
      • retained in custody until their departure from New Zealand on the first available craft (see Y3.70); or
   3. the person asks to be removed from New Zealand, in which case the person may be:
      • treated as if section 128 applied to them; and
      • retained in custody until their departure from New Zealand on the first available craft.
8. A decision on whether or not section 7(1) of the Immigration Act 1987 applies to the person should be made as speedily as possible in the circumstances.
9. No person detained under section 128B may be granted bail.

Effective 01/10/1999