Chapter 12: The right to asylum
Te tika ki te whai whakarurutanga

Everyone has the right to seek and to enjoy in other countries asylum from persecution.
(Universal Declaration of Human Rights, Article 14) [1]

1.  Introduction — Timatatanga

Photo of New Zealand passports.

The United Nations Convention Relating to the Status of Refugees defines a refugee as:

[A refugee is a person who]. owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it (Convention Relating to the Status of Refugees, Article 1A(2)).

Refugees fall into two categories - quota refugees and spontaneous refugees (asylum seekers). [2] Spontaneous refugees are people who claim refugee status on arriving at the border or after entering New Zealand. Spontaneous refugees can in turn be divided into those who are awaiting a decision on their refugee status, and those who have been approved. By contrast, quota refugees are selected for resettlement in New Zealand by the New Zealand Government while still overseas. Quota refugees tend to be part of a mass movement resulting from invasion or oppression, rather than individuals seeking asylum.

Historically, people fleeing natural disasters, or economic migrants who leave their countries to improve their living conditions, have been unable to claim refugee status under the Convention, regardless of their need for assistance, because of their inability to demonstrate a well-founded fear of persecution in the country they have left. (Hathaway, 1991). Increasingly, however, the cause of environmental refugees [3] is assuming significance in New Zealand as a number of our Pacific neighbours face the threat of losing their land to rising sea levels as a result of climatic changes.

Human rights relevant to refugees

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Spontaneous refugees are more likely than quota refugees to be affected by control mechanisms such as detention and border protection. As a result the following rights, which apply irrespective of a person's status, nationality or the country they find themselves in, assume particular relevance for spontaneous refugees:

These rights apply to both categories of refugees. Quota refugees and asylum seekers who are accepted for residence also enjoy the same rights as other New Zealand citizens, including:

2. International context — Ki ngā kaupapa o te ao

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The two main international treaties are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR).

The ICCPR requires ratifying States to protect the civil and political rights of people within their jurisdiction. The rights apply to everybody without exception. More specifically, Article 9(1) is the right to be treated with humanity and dignity. Article 13 is particularly relevant to refugees, as it protects aliens who are lawfully in the territory of a State that is party to the Covenant from expulsion otherwise than by a lawful process, and then only after they have had their case heard and reviewed by a competent authority. [4]

The Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment 1984 (CAT) spells out the requirement that a ratifying State shall not 'expel, return or extradite' a person to another State where there are substantial grounds for believing that they would be in danger of being tortured.[5] This includes not sending a person at risk of torture to a country where, although they may not be immediately at risk, they might be sent on to a country where they were at risk.

Photo of fence topped by barbed wire.

The Convention on the Rights of the Child (UNCROC) is also relevant, since it stipulates that a child should not be separated from his or her parents except when determined by competent authorities.

The 1951 Refugee Convention and the 1967 Protocol establish rights that are specific to refugees. The Convention provides a mechanism for recognising the legal status of refugees, [6] ensuring that they are not returned to countries where they will be in danger of 'persecution' ( refoule ). It also requires that refugees be provided with social and economic rights on a non-discriminatory basis. Refugees should be able to access rights such as work, housing and education on the same basis as other citizens.

Depending on the right involved, the Refugee Convention defines the non-discriminatory treatment of refugees as:

Clearly this limits the protection against discrimination to the basic minimum. In New Zealand this distinction may be largely theoretical, since those granted refugee status have the same rights as other citizens. However, the situation is less satisfactory in the case of asylum seekers whose status has not been determined, who often receive only the minimum level of support necessary to meet Convention requirements (for example, access to emergency medical treatment, but not specialist services).

In addition to the international treaties, a specific statute, the Statute of the Office of the United Nations High Commissioner for Refugees [7] established the United Nations High Commissioner for Refugees (UNHCR) in 1950. The Executive Committee of the UNHCR issues authoritative interpretations of the Refugee Convention and the accompanying protocol (Excom Conclusions). The Executive Committee also produces guidelines on the standards of treatment that apply to refugees (for example, in relation to conditions of detention).

The UNHCR, in its guidelines on detention of asylum seekers, states that there should be a presumption against detention of asylum seekers (UNHCR, 1999). Decisions about detention must be exercised in a non-discriminatory way and be subject to judicial or administrative review to ensure that it continues to be necessary in the circumstances, with the possibility of release where no grounds for its continuation exist. Conditions of detention are also dealt with in the UNHCR guidelines. These include the opportunity to receive appropriate medical treatment and psychological counselling, access to basic necessities (for example, beds, shower facilities and basic toiletries) and access to a complaints mechanism. The guidelines also contain specific provisions relating to children, women and vulnerable persons.

3. New Zealand context — Ki ngā kaupapa o Aotearoa

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The ICCPR is reflected in the New Zealand Bill of Rights Act 1990 (BoRA), which reaffirms the right to justice, to be treated with humanity and dignity, and to security of the person.

The Immigration Act 1987 is the principal piece of legislation that deals specifically with refugees. Part IVA of the Act, which was introduced by the Immigration Amendment Act 1999, provides the statutory basis for ensuring that New Zealand meets its obligations under the Refugee Convention. The Convention itself is appended as a schedule to the Act. [8] One consequence of incorporating the Convention in this manner is that a breach of the Convention is not actionable in New Zealand courts (Frater, 2003). The Convention does apply, however, when it is directly referred to in legislation. For example, section 129D(1) of the Immigration Act requires refugee status officers and the Refugee Status Appeals Authority (RSAA) to act in a manner consistent with New Zealand 's obligations under the Convention when determining refugee status. The operational instructions of the New Zealand Immigration Service, which were revised and reissued in December 2003, also require the Service to take New Zealand 's obligations under international law (including CAT) into account when determining whether to detain, refuse entry to, or remove people who are in New Zealand unlawfully.

The Corrections Act (expected to come into force in early 2005) will remove from the Immigration Act 1987 the requirements for detainees held in prisons to be treated as if they were prisoners awaiting trial, and replace these with a new subsection 140(4A) that reads:

Where a person is detained under this Act in a prison, that person must be treated in accordance with any regulations made under the Corrections Act 2004 regulating the treatment of prisoners detained in prisons under this Act.

Separate regulations are proposed on all people detained in prisons under the Immigration Act (asylum seekers, refugees, etc.). The final content of these has not been determined; however, the Department of Corrections currently proposes that the content of the regulations on Immigration Act detainees be the same as the regulations applying to accused persons (visits, phone calls, able to dress in own clothes, separated from other prisoners to the extent practicable, etc), except that:

The provisions of CAT are reflected in the Extradition Act 1999, which provides that a person should not be extradited when the Minister of Justice has substantial grounds for believing that they would be in danger of torture in the country of extradition.

The obligation not to discriminate is protected by both the New Zealand Bill of Rights Act 1990, which applies to the public sector, and Part 2 of the Human Rights Act 1993, which relates to the private sector, making it unlawful to discriminate in certain areas of public life (including employment, provision of goods and services, accommodation, and access to public places and educational institutions).

Concerns about border control have increased since the attacks on the United States on September 11, 2001. Like many other countries, New Zealand introduced legislation to address the threat of terrorism. The Terrorism Suppression Act 2002 and extra powers added to the Immigration Act 1987 supplement the International Terrorism (Emergency Powers) Act 1987. However, the UN Human Rights Committee in Geneva has signalled that it is worried about the 'negative' impact of these new laws and procedures on asylum seekers, and about the possible expulsion of some people who may be genuine refugees (United Nations, 2002).

In New Zealand , there are concerns about Ahmed Zaoui, a refugee who is currently questioning the validity of a security risk certificate which, if upheld, could result in his expulsion from the country. The case has led to public unease that human rights standards are being abrogated in the interests of national security ( Campbell , 2003; 2004) and that the present legislation may broaden the grounds on which refugee applicants are excluded, or narrow existing procedural protection. The Government has, as a result, given an undertaking that it will review the relevant part of the Immigration Act when Mr Zaoui's case is finally resolved.