Y8.5 Decision on restriction on the freedom of movement of refugee or protection claimants

1. The rights to liberty and security of person are fundamental human rights, reflected in the international prohibition on arbitrary detention, and supported by the right to freedom of movement. In view of the hardship which it entails, and consistent with international refugee and human rights law and standards, detention of asylum-seekers should normally be avoided and be a measure of last resort. As seeking asylum is not an unlawful act, any restrictions on liberty imposed on persons exercising this right need to be provided for in law, carefully circumscribed and subject to prompt review. (UNHCR Detention Guidelines, 2012, page 6.)
2. However, in limited circumstances (see the general instructions at A16.2) it may be appropriate to consider restrictions on the freedom of movement of a refugee or protection claimant who is, or is potentially, liable for turnaround under Part 8 of the Immigration Act 2009 (the Act). This consideration should occur if, after interviewing the refugee or protection claimant, a preliminary assessment against indicates that:
   1. the claimant’s identity cannot be determined at that point; or
   2. there is a clearly identified risk of a claimant posing a risk to national security or public order; or
   3. there is a clearly identified risk of the claimant absconding.
3. Any recommended restriction on freedom of movement of a refugee or protection status claimant under Part 9 of the Immigration Act 2009 must be referred to the INZ Decision-making Panel on Restriction of Freedom of Movement of Asylum Claimants (the Panel).
   1. If the Panel determines that some form of restriction is necessary, the decision will be referred back to the immigration officer to implement the decision.
   2. If the Panel determines that no form of restriction is necessary, the decision on the visa type and duration will sit with the immigration officer.
4. For clarity, mental health concerns are not a sufficient basis to recommend restriction on an individual’s freedom of movement under Part 9 of the Act. If an individual’s behaviour raises concerns of this nature, then immigration officers should consider engaging with relevant domestic agencies which may include Police or Health authorities.
5. The process described in (b) and (c) above should be applied when any form of restriction on freedom of movement is being considered, including but not limited to:
   1. limited detention under section 312 of the Act; or
   2. An initial period of detention under section 313 of the Act; or
   3. Residence and reporting requirements under section 315 of the Act.

Note: Referrals to the Panel with respect to (e)(i) above will generally be decisions referred to the Panel for its information and records only, rather than for a Panel decision, given the tight timeframes and short period of any decisions made under section 312. These should still be provided to the Panel either prior to the decision being given effect or as soon as possible afterwards.

Effective 21/12/2022