D.03.01 Removal and Deportation Orders (National Procedure)

Procedure Standard

Persons subject to a Removal or Deportation Order are dealt with in accordance with statutory requirements.

Definitions

Removal Orders:

• are made by the Chief Executive of the Department of Labour, or an authorised Immigration Officer under Part II of the Immigration Act 1987.
• are made in relation to someone who is unlawfully in New Zealand.
• have the effect of requiring the person, in relation to whom the order is made, to leave New Zealand.
• cannot be executed while a prisoner is still serving his/her sentence of imprisonment in prison.

Deportation Orders:

• are issued under Part III and Part IV of the Immigration Act 1987 by the Minister of Immigration or the Governor General.
• are issued when:

i. Non-New Zealand citizens are threatening national security, or are suspected terrorists; or
ii. persons of a certain immigration status are convicted of certain criminal offences.

Execution

Execution of Removal Orders

1. Execution of a Removal Order for those serving a sentence of imprisonment can only take place on, or after, the date of the prisoner’s proposed release (whether on parole or the date the prisoner commences Home Detention). A Removal Order does not affect the prisoner’s sentence i.e.: there is no ability to execute a removal order prior to the date the offender would otherwise be released.
2. On the date a prisoner is due to be released or commence Home Detention, the Prison Manager may be required, by any member of the Police who indicates an intention to execute the Removal Order, to release the individual into the custody of a member of the Police.
3. The existence of a Removal Order is not sufficient to justify the holding of a prisoner past their release date, and if a Removal Order is not executed then the prisoner must be released from custody. (NB: When the FRD/SRD falls on a non-release day and the inmate is due for release on the nearest preceding release day in accordance with section 52(1) of the Parole Act 2002, he/she must be released on that release day if the Removal Order is not executed).

Execution of Deportation Orders

1. Deportation Orders can be executed during the term of a prisoner’s sentence.
2. Deportation Orders made in relation to a prisoner serving a sentence of imprisonment or preventive detention are dealt with under section 55 of the Parole Act 2002 and sections 86 and 109 of the Immigration Act 1987.
3. Where deportation has been ordered, and the offender is subject to a sentence of imprisonment the Minister of Immigration may, by notice in writing to the Prison Manager, order that the person be released into the custody to the Police for the purpose of deportation. (This is subject to some pre-conditions, including a copy of the order being served on the prisoner, their appeal period against the order having expired, or any such appeal having been determined and the Deportation Order not quashed) (s55(1) of the Parole Act 2002).
4. The Chief Executive of the Department of Corrections may, by notice in writing to the Prison Manager, order the release of a prisoner who is subject to a Deportation Order into the custody of the Police for the purpose of deportation in the last 28 days preceding the prisoner’s Final Release Date/Statutory Release Date (s55(6) of the Parole Act 2002).
5. The prisoner’s sentence continues to run while the prisoner is deported, and if they return to New Zealand before the Sentence Expiry Date, they will be liable to resume serving it (s55(8) of the Parole Act 2002).

Procedure Prisoner Subject to Removal or Deportation Order

1. Prisoners are released for deportation only under the correct process as outlined in s55 of the Parole Act 2002.
2. Prison staff co-operate with NZ Immigration Service concerning a prisoner's departure from New Zealand by removal or deportation, and keep the prisoner informed of the arrangements.
3. When requested by the NZ Immigration Service for an inmate’s FRD/SRD for the purpose of executing a Removal Order, the NZ Immigration Service should be informed of the nearest preceding release day (i.e. Monday/Tuesday/Wednesday).
4. Where the prisoner has a family member in New Zealand, the family member is kept informed of deportation or removal arrangements, subject to the prisoner’s consent.
5. NZ Immigration Service are consulted when applications for temporary releases are considered.
6. Where there is a change in a prisoner's temporary release and final release/statutory release eligibility the NZ Immigration Service is to be advised immediately.
7. NZ Immigration Service access to a prisoner is arranged as required.
8. Prisoners are advised of possible departure arrangements made, as soon as they are finalised.
9. All contact with the prisoner, the prisoner's family and the NZ Immigration Service is documented and filed on the prisoner's prison file.