D3.10 Powers of immigration officers and Police in relation to persons suspected of being in New Zealand unlawfully

Immigration Act 1987 ss 64, 66, 67, 136, 137, 138, 139, 141

There are a range of provisions in the Immigration Act 1987 which assist immigration officers and Police officers to locate and take action against persons suspected of being in New Zealand unlawfully. These powers and their limitations are described in detail in D3.10.1 to D3.10.35.

D3.10.1 Powers of immigration officers to require production of information from some agencies

Immigration Act 1987 s64

1. If an immigration officer has good cause to suspect that:
   1. a particular person is in New Zealand unlawfully; or
   2. particular premises are, or have been, occupied by a person who is in New Zealand unlawfully;

   the immigration officer may prepare a certificate requiring certain government departments or other bodies to produce; and allow the officer to copy, any record or other information held that is reasonably available.

2. The power to require production of such information and records is limited to the government departments or other bodies as set out below:

1. Information obtainable from the sources detailed above is limited to information about an individual which establishes:
   1. in the case of a certificate under(a)(i) above, the present location of the person named in the certificate, or that person's location at any time in the past; or
   2. in the case of a certificate under(a)(ii) above, the name(s) of the present occupier(s), or name(s) of any occupier(s) of the premises at any time in the past.
2. If an immigration officer believes the suspected person is using one or more aliases, the immigration officer may include any such alias in any certificate.

D3.10.5 Powers of immigration officers to enter premises to obtain information

Immigration Act 1987 ss 138

1. Immigration officers have restricted powers of entry, limited to those circumstances provided for by section 138 of the Immigration Act 1987. This section allows immigration officers to enter certain premises if they believe on reasonable grounds that a person, who is either unlawfully in New Zealand or working without authority, is named in records held on the premises; and to require production of such records.
2. Premises include:
   1. accommodation premises such as any:
      • hotel
      • motel
      • guesthouse
      • motorcamp
      • other premises where accommodation is offered for payment, except a private home; or
   2. business premises or places of employment.

      Note: This does not include educational institutions in respect of educational records

3. Records include:
   1. in the case of accommodation premises, any register or list; and
   2. in the case of business premises or places of employment, any wages or time record kept by an employer.
4. An immigration officer may enter any of the premises included in (b) above and any part of those premises where the officer reasonably believes any record included in (c) above is kept. No warrant or authority other than section 138 of the Immigration Act 1987 is required.
5. Entry may be made at any reasonable time, both day and night, during which the premises are open for business.

D3.10.10 Power of immigration officers to require a suspected person to surrender documents

Immigration Act 1987 s 138A

1. The powers conferred by section 138A of the Immigration Act 1987 should only be used if good cause to suspect a person is unlawfully in New Zealand has been established (see D3.1) and the person is unwilling to cooperate in confirming their actual status in New Zealand. Prior to taking a person into custody under this section, immigration officers should discuss the case with their team leader or Branch Manager.
2. Provided they inform the person that they have good cause to suspect they are in New Zealand unlawfully, an immigration officer, for the purpose of establishing that, may require that person to:
   1. give their full name or names (if known by more than one name); and
   2. either surrender to the officer or give the officer authority to uplift from any other person:
      • any passport or certificate of identity relating to the suspected person, whether or not it also relates to any other person; and
      • any passport or certificate of identity relating to any dependent child of the suspected person; and
      • any travel tickets or cash or security in lieu of travel tickets held by or on behalf of the suspected person; and
      • documentary or other evidence of their identity.
3. If the suspected person refuses or fails without reasonable excuse to comply, or make reasonable arrangements to comply, with any requirement in (b) above (except the request to surrender travel tickets, or cash or security in lieu of travel tickets), the immigration officer must warn them that if they continue to refuse or fail to comply, they are liable to be detained.
4. If, despite being warned as in (c) above, the suspected person continues to refuse or fail to comply, or to make reasonable arrangements to comply, with any requirement in (b) above, the Police may arrest the person without warrant and place them in custody.
5. If a person is placed in custody as provided in (d) above, an immigration officer must ensure that unless:
   1. the person's identity has been confirmed; or
   2. the person has been removed from New Zealand under section 59 of the Immigration Act 1987; or
   3. the person has been released,

   they are brought before a District Court Judge as soon as possible so that they can establish their identity to the satisfaction of the Judge. The Judge may then determine who the person is and may make any orders or directions as they think appropriate.

D3.10.15 Powers of immigration officers to require a third party to surrender documents

Immigration Act 1987 s 66
Immigration Regulations 1999 Reg 37 Form 3 Schedule 2

1. If a person has refused or failed to surrender a passport or certificate of identity, or has given an immigration officer information on where the document can be found, an officer may, if they have good reason to suspect that a third party holds the document, request, in the prescribed manner, that third party holding the document to surrender it to them. This includes lawyers, immigration consultants etc.
2. A person who, without reasonable excuse, fails to surrender the requested document, commits an offence under Immigration Act 1987.

D3.10.20 Use and return of surrendered documents

Immigration Act 1987 s 67

1. Any passport, certificate, documentary or other evidence surrendered to an immigration officer under section 65 or 138A of the Immigration Act 1987 will only be used:
   1. to confirm the identity of the suspected person; and/or
   2. to confirm the immigration status of the suspected person; and/or
   3. to bring about the removal of the suspected person from New Zealand; and/or
   4. in any proceedings before an Authority, Tribunal or a court.
2. Documents or other material must be returned to the person who surrendered them :
   1. if the immigration officer is satisfied that the suspected person is not unlawfully in New Zealand; or
   2. the purpose for which it was surrendered has been served; or
   3. if it is still available to be returned, once the person has been removed from New Zealand.
3. If the document or other material is known to be the property of a third party it must be returned to the third party.

D3.10.25 Powers of entry and search - Police officers

Immigration Act 1987 s 137

1. Police officers have the same powers of entry and search as set out in D3.10.5 for immigration officers.
2. In addition to the powers in (a) above, if any member of the Police believes on reasonable grounds that a person named in an order or notice is present they may enter any building or premises at any reasonable time by day or night, by force if necessary, for the purpose of:
   1. serving or executing any removal order; or
   2. serving or executing any deportation order; or
   3. serving notice of revocation of a residence permit.

D3.10.30 Power of arrest - Police officers

Immigration Act 1987 ss 134, 135

1. The Immigration Act 1987 has a number of provisions which give Police officers powers of arrest.
2. When arresting any person without warrant under any provision in Part II of the Immigration Act 1987 the Police officer has a duty to:
   1. inform the person at the time of arrest, unless it is impracticable to do so, of the reason for the arrest and the fact that the arrest does not relate to a criminal matter; and
   2. if not in uniform, produce evidence that they are a Police officer.
3. A Police officer arresting any person under the Immigration Act 1987 may call on any person nearby for assistance. That may include an immigration officer, who is then justified in assisting.

D3.10.35 Requirement on officers to identify themselves

Immigration Act 1987 s 133

1. Immigration, Customs and Police officers are all required to identify themselves when exercising the powers of an immigration officer under the Immigration Act 1987.
2. Suitable evidence of identity is as follows:
   1. for immigration officers, the officer's warrant of designation.
   2. for Customs officers, evidence of the officer's appointment as a Customs officer.
   3. for Police officers, being in uniform is sufficient, otherwise the officer's badge or other evidence of being a member of the Police.
3. If an officer is seeking entry to any premises, building or craft in the course of their duties under the Immigration Act 1987, the officer must, if called upon to do so, state the provision or provisions of the Immigration Act 1987 which entitle them to entry.

Effective 01/10/1999