Dialogue: In prison at Christmas on the whim of bureaucrats

Our handling of asylum-seekers breaks some of the fundamental tenets of our legal system. A more humane approach is needed, writes CATRIONA MacLENNAN*.

An unknown number of asylum-seekers will spend Christmas locked up in the Auckland Central remand prison.

They will be detained for an indefinite period, some for months. Some have not been, and never will be, charged with any criminal offence. There will be virtually no independent oversight of their circumstances.

It is difficult to believe this could happen in New Zealand. Most people consider the fundamental tenets of our legal system to be that people should not be detained unless they face criminal charges, and that any detention should have a limit.

That is no longer the case under our immigration laws. Section 128 of the Immigration Act provides that people in New Zealand unlawfully may not be detained for more than 48 hours without a warrant of commitment being obtained from a registrar or deputy registrar of a District Court.

How this works in practice is that when an asylum-seeker arrives at the airport, the Immigration Service decides almost immediately whether to detain that person in custody.

This will typically involve cases where the person has no documents or apparently false documents.

If the person claims refugee status, he or she may have handwritten a refugee status claim at the airport, and will, therefore, expect the protection offered by international conventions.

The person will at that time not have seen a lawyer or had legal advice. He or she will be bewildered and frightened.

Being locked up with criminals adds to the stress.

If the Immigration Service has decided to continue detaining the person, a written application will be made to the registrar of a District Court. The registrar basically rubber-stamps this - he or she is not in a position to make independent inquiries and arrive at an assessment of whether it is appropriate to detain the person.

The asylum-seeker at that time is quite likely still without a lawyer. In any case, the law does not provide for the asylum-seeker or the lawyer to make submissions about whether a 28-day warrant should be granted.

The refugee status claim will typically take several months to pass through the initial decision and any appeal which may be lodged.

And asylum-seekers remain locked up throughout that process.

At the end of the 28-day period, the law requires them to be brought before a District Court judge every seven days for the judge to decide whether the warrant should be further extended.

This should, in theory, provide an independent check on the person's situation and enable the District Court judge to inquire into the position.

The initial appearance before a judge will be the first time in 30 days that there has been an opportunity for outside assessment.

Unfortunately, the rubber-stamping continues. In a series of cases, judges have decided the law leaves them no power to intervene in the issue of detention once the registrar has made the initial decision that the person be detained in custody.

This is ridiculous. When registrars are presented with papers by the Immigration Service, they do not inquire about what other arrangements could be made for the asylum-seeker. They simply sign and stamp them.

This means the law provides no way of reversing an initial decision made when an asylum-seeker has no lawyer and no opportunity of making any submissions.

The Immigration Service will normally wish to detain people who it believes are unlikely to be able to remain here permanently.

International convention provides that as long as such people have been detained, they can simply be shipped back to the last place they came from.

This is a very neat and easy administrative solution for the service, which might otherwise have difficulty in later removing the person.

But it mean the service is acting on the basis of an instantaneous pre-determination when the person arrives at the airport.

This is also contrary to the fundamental precepts of our legal system.

The Mangere refugee resettlement centre has now been designated as detention for legal purposes, and is also guarded so people cannot leave.

Asylum-seekers in jail could be detained there without any impact at all on the ability to later fly them out of the country again.

But in a recent case with which I dealt, the Immigration Service refused even to contemplate either that option or the suggestion that the person could wear an electronic monitoring bracelet.

Even when my client was assessed by a prison psychologist as being at risk of suicide, this made no difference to the attitude of the service.

Since District Court judges have decided they have no power to intervene in the process, the decisions of the Immigration Service cannot be challenged.

These laws should be repealed. People not facing criminal charges should not be able to be jailed indefinitely.

New Zealand should take a leaf out of Sweden's book and adopt a more humane approach to asylum-seekers.

* Catriona MacLennan is a South Auckland lawyer