Unreasonable failure to ensure immigration detainee advised of right to lawyer

The Chief Ombudsman considered a complaint that Immigration New Zealand (INZ) had failed to take reasonable steps to ensure that an individual detained by the Police under immigration powers was informed of his right to contact a lawyer while detained and prior to his removal from New Zealand.

The complainant, who was already in Police custody, was not informed of his right to contact a lawyer when he was served with a removal order and detained thereafter by the Police under the Immigration Act 1987 (1987 Act). The Chief Ombudsman formed the opinion that INZ was required by the 1987 Act (section 140(4)) and by immigration policy (D4.15.1.a of INZ’s Operational Manual) to take reasonable steps to ensure that the complainant was aware of his rights to representation with respect to his immigration matters and, in the circumstances of this case, that INZ had failed to do so.

The Chief Ombudsman noted that, at the time of her investigation and review, the Immigration Act 2009 (2009 Act) was in force. She considered the application of that Act as it relates to the arrest and detention of individuals unlawfully in New Zealand and confirmed that the principles in this case could apply to the current legislation.

INZ accepted the Chief Ombudsman’s opinion and undertook to review its procedures to ensure not only that a detainee has been advised of the right to contact a lawyer but also that there is adequate record of this.

By way of remedy for the complainant, INZ agreed to cancel the removal order and to waive the complainant’s liability for the costs of removal.

In addition, INZ later agreed that, should the complainant lodge an application for residence, any such application would be afforded priority and outlined the steps it had taken to improve its policies and procedures.

This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.