By Ava

Reasonable Suspicion or Arbitrary Action? A Critical Examination of New Zealand's Immigration Amendment Bill

New Zealand's immigration system stands at a crossroads. The Government's proposed Immigration (Fiscal Sustainability and System Integrity) Amendment Bill, No. 138-1 — announced by Immigration Minister Erica Stanford — represents both a necessary strengthening of compliance mechanisms and a potential threat to the foundational principles of fairness and due process that have long defined our nation's approach to immigration.

While the bill's objectives to combat migrant exploitation, enhance compliance, and manage deportation settings more effectively are valid, the implementation details reveal concerning possibilities for overreach that demand careful scrutiny.

The critical question is not whether New Zealand needs stronger immigration enforcement tools, but whether the proposed mechanisms adequately safeguard against the transformation of reasonable suspicion into arbitrary action. The stakes could not be higher. The integrity of our immigration system, public trust in government institutions, and the wellbeing of vulnerable migrant communities all hang in the balance.

A System Under Pressure: The Current Context

The announcement comes against a backdrop of significant immigration compliance challenges. Immigration New Zealand's latest estimates reveal approximately 20,980 people overstaying their visas as at 1 July 2025 — a figure based on a new methodology, which officials caution should not be directly compared to the previous 2017 estimate of 14,000 (source: MBIE 2025, https://www.mbie.govt.nz).

In the last financial year, 1,259 unlawful individuals were deported, self-deported, or voluntarily departed. These figures represent an increase of 352 from the previous year, highlighting the genuine need for effective compliance mechanisms in managing what Immigration compliance manager Steve Watson describes as “a very small proportion of temporary migrants” among New Zealand’s annual processing of approximately one million visa applications and 1.6 million Electronic Travel Authority requests (source: Immigration NZ statistics, https://www.immigration.govt.nz).

However, the relatively small scale of overstaying — less than 0.2 percent of temporary visas for those arriving in the two-year period ending July 2025 — raises questions about the proportionality of the proposed legislative response.

The Expansion of Identity Powers

Perhaps the most concerning provision in the bill is the expansion of immigration officers' ability to request identity-based information when there is “good cause to suspect” an individual may be in breach of visa conditions or liable for deportation (clause 23, inserting new s275A: https://www.parliament.nz).

In New Zealand practice, “good cause to suspect” has generally been treated as equivalent to reasonable suspicion — not a lower threshold. The key change is in scope: who may be stopped, where, and under what circumstances.

Without clear operational guidelines, discretionary authority could drift toward profiling based on appearance, accent, or perceived ethnicity. International experience, such as the United States’ use of expedited removal procedures under broad suspicion standards, shows the dangers of ambiguity in enforcement.

The False Information Paradigm

The bill’s approach to false and misleading information builds on a shift that began with Amendment Circular No. 2023-26, implemented on 25 September 2023.

Under the previous framework, established by the Court of Appeal in Chiu v Minister of Immigration, INZ was required to prove both the actus reus (false information provided) and mens rea (intention to deceive).

Since 2023, however, the law has shifted to what is effectively a strict liability basis. Immigration officers no longer need to establish intentional deception before declining an application based on false or misleading information.

This matters because the Bill reinforces that false or misleading information can trigger deportation liability (clause 9: https://www.parliament.nz). Innocent mistakes due to translation issues, cultural misunderstandings, or bureaucratic complexity now risk life-altering consequences. The broadened definition of “relevant information” compounds uncertainty by focusing on whether information deprived INZ of a line of inquiry, even if it would not have led to a decline.

Retrospective Justice and Deportation Liability

The Government has announced its intention to extend deportation liability for residence class visa holders from 10 years to 20 years. Currently, section 167 of the Immigration Act 2009 sets the period at 10 years (https://www.legislation.govt.nz). The extension has been announced by Ministers but does not yet appear in the text of Bill 138-1. Any future amendment would likely appear in Part 6 of the Act (Deportation and Removal).

If enacted, this change would alter the balance established by section 161, which recognises that long-term residents are likely to have deep community and family ties. Extending deportation liability risks creating perpetual insecurity, particularly when combined with retrospective application to pre-arrival crimes.

The Visa “Error” Provision

The expansion of when a visa is considered to have been granted “in error” is addressed in clause 6 (amending s61A: https://www.parliament.nz). While correcting genuine administrative mistakes is reasonable, the lack of a clear statutory definition creates potential for unfair application. Migrants who acted in good faith could face deportation years later for an error beyond their control.

Given INZ’s own performance statistics — 91% accuracy for temporary visa decisions and 92% for residence visa decisions — the potential scale of affected individuals is significant.

The Migrant Exploitation Paradox

One positive feature of the Bill is the increase in penalties for migrant exploitation from seven to ten years’ imprisonment (clause 18, amending s351: https://www.parliament.nz).

However, the paradox is clear: the same legislation that seeks to protect vulnerable workers also introduces enforcement powers that could deter them from reporting abuse, for fear of triggering deportation scrutiny.

Deportation Notices and Due Process

Deportation Liability Notices remain governed by sections 170–171 of the Immigration Act, with appeals under section 175A (https://www.legislation.govt.nz). Timelines remain strict, and any move to electronic service — though not in the Bill — would require strong safeguards to ensure genuine notice is provided.

Building Guardrails

The Bill need not force a choice between enforcement and fairness. With proper frameworks, it could strengthen compliance while upholding rights. Key guardrails include:

• Clear standards defining “good cause to suspect.”

• Proportionate false information tests that distinguish error from deception.

• High thresholds for retrospective action.

• Due process protections if electronic service is introduced.

• Independent oversight with public reporting.

• Community engagement with migrant groups.

The Immigration (Fiscal Sustainability and System Integrity) Amendment Bill represents a pivotal moment for New Zealand’s immigration system. Its goals are legitimate, but without careful safeguards, expanded powers risk transforming reasonable suspicion into arbitrary action.

The true test of this Bill will not be the number of deportations it facilitates, but whether it strengthens trust in an immigration system that treats all people with dignity while protecting national interests.

Ava Sanchez Neal