Detention beyond six months: conditional renewal and release test

Policy effect

From November 29, 2010, section 323 of the Immigration Act 2009 prescribed a renewal test where a further warrant would extend consecutive detention beyond six months, calculated under that section. The judge had to issue a further warrant if the person’s action or inaction prevented departure or deportation and no exceptional circumstances warranted release; otherwise, conditional release was required. The clock ran from initial warrant detention when appeal rights were exhausted or absent, otherwise from the later of conclusion of the relevant appeals or expiry of the appeal period. Relevant appeal rights covered appeals against deportation liability and refugee/protection appeals associated with claims made before the specified deportation notice or arrest. For a refugee or protection claim made only after a deportation liability notice or order, or detention for deportation or turnaround, it ran from final determination; a subsequent claim reset that starting point. Final determination included expiry of the appeal period or determination of an appeal. Escape periods through 96 hours after recapture were excluded. Detention already served and the possibility of continued obstruction by the person were not exceptional circumstances under this test. It did not apply to persons ordered deported under the security power in section 163. Applications required sworn officer evidence and reasons; the judge could require attendance and cross-examination. Section 441 applied the test regardless of whether initial detention preceded the 2010 commencement. By comparison, the former section 60 served-removal-order regime generally prohibited consecutive detention beyond three months, except for specified post-order refugee claimants or cases where action or inaction after service of the removal order directly or indirectly prevented departure, with exceptional-circumstances release provisions. This was not a universal six-month detention cap or a clock starting automatically on arrest.

Conditions and exceptions

Validated condition or limit: otherwise, conditional release was required.; Relevant appeal rights covered appeals against deportation liability and refugee/protection appeals associated with claims made before the specified deportation notice or arrest.; For a refugee or protection claim made only after a deportation liability notice or order, or detention for deportation or turnaround, it ran from final determination; Escape periods through 96 hours after recapture were excluded.; Applications required sworn officer evidence and reasons; By comparison, the former section 60 served-removal-order regime generally prohibited consecutive detention beyond three months, except for specified post-order refugee claimants or cases where action or inaction after service of the removal order directly or indirectly prevented departure, with exceptional-circumstances release provisions.

Official source excerpt

Quoted verbatim from the official source below. Ellipses indicate omitted text.

323 Decisions on warrants of commitment where detention beyond 6 months (1) This section applies where a person would, upon a successful application for a further warrant of commitment under section 316 , be detained under consecutive warrants of commitment for a continuous period of more than 6 months following— (a) the person’s initial detention under a warrant of commitment, where the person has exhausted all appeal rights under this Act at the time of that initial detention, or had no such appeal rights; or (b) where paragraph (a) does not apply, the later of— (i) the conclusion of any appeal proceedings brought by the person; or (ii) the expiry of any period for bringing such an appeal; or (c) the date when a claim for recognition as a refugee or a protected person is finally determined (within the meaning of section 128 ), if the claim was made only after the person— (i) was served with a deportation liability notice or order; or (ii) was arrested and detained for the purpose of deportation or turnaround. (2) A further warrant of commitment authorising the detention of a person to whom this section applies must be issued if a District Court Judge is satisfied— (a) that the person's deportation or departure is prevented by some action or inaction of the person; and (b) that no exceptional circumstances exist that would warrant release. (3) If the Judge is not so satisfied, the Judge must order the person’s release on conditions under section 320 . (4) An application for a further warrant of commitment in a case to which this section applies— (a) must be supported by evidence under oath by an immigration officer; and (b) must include a statement as to why the further warrant is required; and (c) may include any other supporting evidence. (5) The Judge may require the immigration officer to attend the hearing to give evidence and be subject to cross-examination. (6) The period of 6 months referred to in subsection (1) must be calculated exclusive of any period commencing on the date on which the person to whom the warrant relates escapes from lawful custody and ending 96 hours after the date on which the person is again taken into custody under this Act. (7) This section does not apply to a person whose deportation has been ordered under section 163 . (8) To avoid doubt, if a person to whom subsection (1)(c) applies makes a subsequent claim, the 6-month period must be treated as starting on the date the subsequent claim is finally determined. (9) In subsection (1),— appeal proceedings means the proceedings in respect of which the appeal rights are exercised appeal rights means— (a) the rights of appeal the person has or had against liability for deportation; and (b) the refugee and protection appeals associated with any claim made before the person was served with a deportation liability notice or arrested and detained for the purpose of deportation or turnaround. (10) For the purposes of subsection (2), exceptional circumstances do not … (a) the period of time that a person has already been detained under this Part; or (b) the possibility that the person's deportation or departure may continue to be prevented by some action or inaction of the person. Compare: 1987 No 74 s 60(6)(b) 128 Matter not finally determined until expiry of appeal period or when appeal determined A matter under this Part must not be treated as finally determined until— (a) the expiry of the appeal period for any appeal relating to the matter; or (b) if a person lodges an appeal, the appeal is determined. 441 Detention of person beyond 6 months Section 323 of this Act applies to a person regardless of whether the person was initially detained before or after the commencement of section 404 of this Act. 60 Release or extended detention if craft unavailable, etc, within 72-hour period (1) Where a person is arrested and detained under section 59 and it becomes apparent that— (a) no craft will be available within the 72-hour period specified in that section; or (b) a craft that was available is no longer available; or (c) it is not practicable for the person to be placed on a craft within the 72-hour period; or (d) for some other reason the person is unable to leave New Zealand within the 72-hour period,— then, unless the person is released, an immigration officer must arrange for the person to be brought before a District Court Judge for the purpose of obtaining a warrant of commitment. (2) Subject to any extension of it under subsection (4) or subsection (6A), a warrant of commitment issued under this section authorises the detention of the person named in it for a period of 7 days or such shorter period as the Judge thinks necessary to enable the execution of the removal order. (3) A Judge may issue a warrant of commitment on the application of an immigration officer if satisfied on the balance of probabilities that the person in custody is the person named in the removal order and that any of the following applies: (a) a craft is likely to be available, within the proposed period of the warrant of commitment, to take the person from New Zealand: (b) the practical difficulties that meant that the person could not be placed on an available craft within 72 hours are continuing and are likely to continue, but not for an unreasonable period: (c) the other reasons the person was not able to leave New Zealand within the 72-hour period are still in existence and are likely to remain in existence, but not for an unreasonable period: (d) in all the circumstances it is in the public interest to make a warrant of commitment. (4) If at the expiry of a warrant of commitment made under this section the person has still not left New Zealand, then, unless released, the person must be again brought before a Judge for an extension of the warrant of commitment, in which case subsections (2) and (3) (and, if appropriate, subsection (6A)) apply. (5) If a person is brought before a Judge under subsection (4) for a second or sub …

Review method

Source-based draft with independent Gemini 3.8 Flash verification

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