Part 3: Citizenship and permanent residency
3.1
In this Part, we summarise the main features of the Citizenship Act that were relevant to Mr Liu's application for citizenship. We explain the "good character" requirement in the Citizenship Act and some of the particular difficulties that requirement has given rise to, at times, with unproven allegations.
3.2
We also explain the relationship between citizenship and permanent residency, and between the Department, which manages applications for citizenship, and Immigration, which manages applications for permanent residency permits.
Citizenship
3.3
Citizenship is an important concept in international and domestic human rights law. Citizenship of a country recognises that that is where you have a right to be. Stateless people (with no citizenship or nationality) are recognised in international law as needing special protection.
3.4
In New Zealand, the defining special rights of a citizen are set out in section 13 of the Immigration Act 2009:
… every New Zealand citizen has, by virtue of his or her citizenship, the right to enter and be in New Zealand at any time;
… no New Zealand citizen is liable under this Act to deportation from New Zealand in any circumstances.
3.5
Citizenship in New Zealand is superficially similar to permanent residency. Citizens and permanent residents enjoy certain rights and protections, including the right to reside permanently in New Zealand. However, citizenship recognises a particular relationship between the citizen and the state, which does not apply in the same way to permanent residents. The grant of citizenship can be seen as giving three main benefits:
- a greater sense of national identity;
- a greater degree of "security of tenure" for being in New Zealand (and, indirectly, Australia), because it removes the need to hold a residency visa; and
- the right to travel internationally on a New Zealand passport.
Grant of citizenship
3.6
The Citizenship Act sets out how and when people acquire and lose New Zealand citizenship. Most citizens automatically acquire that status because they are born in New Zealand or because one of their parents is a citizen. However, if you are not automatically a citizen, you can apply to the Crown to be granted that status.
3.7
The grant of citizenship is more a privilege than a right. To grant citizenship is to exercise a core power of state sovereignty. The Citizenship Act gives this decision to a Minister and sets out the grounds on which the Minister can grant that status.
3.8
New Zealand citizenship and a New Zealand passport, in particular, are highly prized internationally because of New Zealand's reputation as a country largely free from corruption, and because of the relative ease of access to other countries a New Zealand passport provides.
Citizenship criteria
3.9
There are two sections of the Citizenship Act under which the Minister may authorise the grant of citizenship. Section 8 of the Act sets certain criteria that the applicant needs to satisfy to qualify for citizenship, including having the right to be in New Zealand indefinitely, having been present in New Zealand for a minimum number of days in the preceding five years, intending to continue to live in New Zealand, having sufficient command of English, and being of "good character".
3.10
The other section of the Citizenship Act under which an applicant can apply for citizenship is section 9. Section 9 gives the Minister the power, in a limited range of circumstances, to authorise the grant of citizenship to someone who may not satisfy the section 8 criteria. Those circumstances include if, for example, the applicant would otherwise be stateless, or if there are:
… exceptional circumstances of a humanitarian or other nature, which means it is in the public interest for the applicant to be granted citizenship.
3.11
If the Minister authorises the grant of citizenship under section 9, they can take into account whether the applicant satisfies the section 8 criteria but are not obliged to apply them.
Scope of ministerial discretion
3.12
Powers such as those given to the Minister under the Citizenship Act inevitably involve a degree of discretion. The role of Department officials is to provide advice and guidance to the Minister on applying the criteria in the Act. The Minister must be satisfied that the criteria in the Act have been met, but they are not bound to follow the Department's recommendation. Ministers usually, but not always, follow the Department's recommendations.
3.13
Ministerial discretion is an important feature of the Citizenship Act. It was generally agreed by those we spoke to that the exercise of ministerial discretion provides an important protection against the risk of inflexible and unduly bureaucratic decision-making.
3.14
However, as with any ministerial decision, when authorising a grant of citizenship, the Minister must ensure that the decision is consistent with the statutory requirements, and that the Minister acts within the normal principles recognised by administrative law.
Processing applications
3.15
When an application for citizenship is received, it is usually referred to one of the Citizenship Offices located around the country, where it is checked to ensure that the applicant qualifies for citizenship under the Citizenship Act.
3.16
The checks are carried out by applying the relevant sections of a Policy Manual maintained by the Department to help staff determine whether the criteria in the Act have been satisfied. The purpose of the Policy Manual is to ensure that all parties – applicants, Department staff, and the Minister – have a common understanding of the basis on which citizenship will be granted.
3.17
The Policy Manual requires Citizenship Officers to apply the policies and guidelines in it consistently, but not overly rigidly. Citizenship Officers can make recommendations outside the guidelines to take account of mitigating or aggravating factors, as long as they provide information to support their recommendations.
3.18
The Policy Manual is not a statement of citizenship law. Citizenship policies are subject to change, depending on the views of the Government of the day and the views of the Minister as decision-maker.
Schedules and submissions
3.19
If an applicant satisfies the "standard" section 8 criteria, their name is entered on a schedule that is forwarded to the Minister for approval. Schedules are usually sent to the Minister weekly and include between 300 and 650 names, depending on the number of applicants. Little detail is provided about the applicants, other than their name and nationality and confirmation that, according to the Policy Manual, they satisfy the section 8 criteria.
3.20
If there is a question about whether the applicant clearly satisfies the criteria, or if they wish to apply for citizenship under section 9, an individual submission is prepared for the Minister's consideration.
3.21
At the time of the decision about Mr Liu, the Department was experiencing a particularly high volume of citizenship applications due to imminent changes to the Citizenship Act. According to statistics provided by the Department, in the four years from 2005 to 2008, about 2395 applications were made by submission. This is an average of just under 600 each year, or 50 each month. The number of submissions has since decreased to around 270 in 2011.
3.22
The Department's practice is to recommend whether to accept or decline the application for citizenship. Ultimately, it is the Minister's decision. Between 2005 and 2011, on average, about 8% of submissions were decided against the recommendation of the Department.
Citizenship ceremonies
3.23
Under the Citizenship Act, the Minister can require applicants who have been granted citizenship to take an oath (or make an affirmation) of allegiance to New Zealand. Under current policy, all applicants over the age of 14 are required to take an oath or make an affirmation of allegiance unless they qualify for a specific exemption (for example, if they live overseas or cannot speak English).
3.24
The oath of allegiance may be taken before a District Court Judge, a solicitor, a Justice of the Peace, a member of Parliament, the mayor or deputy major of a territorial authority, the chairperson or deputy person of a regional council, or the Secretary of Internal Affairs.
3.25
As a general rule, the oath or affirmation must be taken or made at a public citizenship ceremony. The timing of ceremonies is determined by local authorities. Local authorities provide dates for ceremonies for the year or wait until there are sufficient applicants available for a ceremony.
3.26
The Department has a policy for approving urgent ceremonies, where the applicant is accepted in the next available public citizenship ceremony. Urgency can be approved, for example, for members of a sports team who need a passport urgently to travel overseas to represent New Zealand. Under the policy, the General Manager of Citizenship has discretion to approve a departure from this policy.
3.27
Under the Citizenship Act, private ceremonies require the consent of the Minister. If a private ceremony is requested, the Department provides the Minister with information about the applicant's circumstances and makes a recommendation to the Minister about whether to waive the requirement to take the oath or affirmation of allegiance at a public ceremony.
Loss of citizenship
3.28
A decision to authorise the grant of citizenship can be rescinded at any time before the date the person becomes a citizen, if the Minister is no longer satisfied that the person meets the requirements for citizenship. In practical terms, that means that the Minister's decision to authorise the grant of citizenship can be rescinded at any time before a citizenship ceremony takes place.
3.29
It is hard for a person to lose citizenship once they have it. An adult who becomes a citizen in another country can choose to give up New Zealand citizenship. There is a formal process to control how this step is taken. Otherwise, the Minister can remove a person's citizenship only if the Minister is satisfied that:
- as an adult, a person has effectively taken on the citizenship or nationality of another country and "acted in a matter contrary to the interests of New Zealand"; or
- a person was granted citizenship under the Act as a result of fraud or mistake.
3.30
Once a person renounces or is deprived of citizenship, they are automatically deemed to hold a resident visa. A former citizen is liable for deportation if both the citizenship and the original residency status were the result of fraud.
Relationship between citizenship and permanent residency
3.31
The right to be in New Zealand indefinitely is a prerequisite to the grant of citizenship under section 8 of the Act (but not under section 9). Usually, but not always, the right to reside indefinitely in New Zealand arises because the applicant holds a New Zealand permanent residency permit. Australian citizens, for example, have the right to reside indefinitely in New Zealand without being permanent residents of New Zealand.
3.32
Permanent residency permits are issued under the Immigration Act 2009, which is administered by Immigration.
The Department's access to Immigration information
3.33
The Department and Immigration are parties to a Heads of Agreement that enables the Department to access Immigration's client database, known as the Applicant Management System (AMS). The two agencies also liaise with each other regularly when there are applicants who are of interest to them both. However, immigration and citizenship matters essentially operate under two separate decision-making systems. Except in limited circumstances, there is no requirement for the Department to consult Immigration about citizenship applicants who are also of interest to Immigration.
3.34
When someone applies for citizenship, the Department checks whether they are entitled to reside permanently in New Zealand by accessing the AMS. The Department is also able to view other relevant information about the applicant, such as alerts, that has been entered into the database by Immigration staff. Where there is an alert on the system, the Department will make further inquiries with Immigration.
3.35
If the AMS shows that an applicant for citizenship has had a permanent residency permit for the right number of days, the applicant is deemed to satisfy the permanent residency requirements in the Citizenship Act. This is so even if an investigation is under way into the applicant's permanent residency status. An active investigation by Immigration might provide evidence that the "good character" requirement of the Citizenship Act has not been satisfied, but does not mean that the permanent residency requirement has not been met.
Effect of granting citizenship on permanent residency status
3.36
Once someone has been granted citizenship, their permanent residency permit (if they had one) is obsolete. Legal proceedings can still be brought for any offences committed under the Immigration Act. However, revoking the right to reside permanently in New Zealand is no longer an option, unless the individual is deprived of citizenship. Citizenship is a stronger and more protected status than permanent residency.
The "good character" requirement
3.37
One of the standard criteria in the Citizenship Act under section 8 is that the Minister be satisfied that the applicant is of "good character".
3.38
When someone applies for citizenship, Department officials carry out certain procedures and enquiries so that they can advise the Minister whether or not an applicant satisfies this test. They then either:
- advise the Minister that they are not aware of anything that might be considered detrimental to the applicant's character; or
- provide the Minister with information the Minister might want to consider when determining whether the applicant is able to satisfy the "good character" requirement.
3.39
Under the Citizenship Act, the Minister determines whether the applicant meets the "good character" requirement, after taking into account the Department's views.
3.40
If information comes to light suggesting that an individual might not satisfy the "good character" requirement, that information is usually presented to the applicant, giving them an opportunity to respond and, if possible, to resolve any concerns. Detrimental information does not automatically mean that the individual will not be eligible for citizenship. That determination is made case by case.
3.41
If, as a result of the detrimental information, the Department decides to recommend that the application be declined, the applicant is given the option to defer their application until the outstanding issues have been resolved. It is the applicant's choice. We were told that it was unusual, but not unheard of, for an applicant to choose to continue with their application when there were unresolved matters relating to good character.
3.42
If the Minister is satisfied that the applicant is of good character, despite the information suggesting they are not, the Minister can authorise the grant of citizenship under section 8.
3.43
If the Minister is not satisfied that the applicant is of good character, the applicant might still be eligible for citizenship under section 9 of the Act. Section 9 allows the Minister to authorise the grant of citizenship if, for example, the applicant would otherwise be stateless, or if there are exceptional circumstances of a humanitarian or other nature which mean it would be in the public interest to grant citizenship.
3.44
When considering an application under section 9, the Minister has discretion to consider the section 8 requirements, such as good character, but is not required to do so.
Dealing with unproven allegations
3.45
At the time of Mr Liu's application, the application of the "good character" requirement in the Citizenship Act had given rise to a particular concern for the then Minister (Hon Rick Barker).
3.46
Mr Barker was concerned about cases where allegations had been made about the applicant but the Department was not able to establish whether the allegations were true.
3.47
The concern about unproven allegations was heightened when the applicant was from a country whose judicial system might not be subject to the same standards of natural justice as would apply in New Zealand, or with a questionable human rights record, or that might apply the death penalty.
3.48
Mr Barker was not alone in his concerns. Similar concerns were also a feature of immigration cases. We were told that a previous Minister of Internal Affairs had raised similar concerns, which led to a number of delayed citizenship applications.
3.49
A solution was achieved, in part, by inserting section 9A into the Citizenship Act. Section 9A set out certain "mandatory" disqualifying convictions. However, it was still considered necessary to preserve a ministerial discretion to deal with harsh cases – such as convictions for offences that would not be considered criminal in New Zealand (for example, witchcraft). Section 9A did not address the issue of unproven allegations.
3.50
The Minister was still required to exercise discretion about where to draw the line about past criminal convictions and to form a view about the weight to be given to unproven allegations.
3.51
Mr Barker sought legal and policy advice about how such cases should be approached. In summary, the advice provided by Crown Law was that:
- The onus is on the applicant to assert good character and to satisfy the Minister that he or she is a suitable candidate for citizenship.
- The Department must provide the applicant with details of all of the relevant material and an opportunity to rebut the allegations.
- Ministers do not have to decide beyond reasonable doubt whether the unproven allegations are true. The existence of unproven allegations will be a relevant factor in the decision to authorise the grant of citizenship, but must be considered along with all other relevant factors.
- It is not possible to provide strict guidelines about the weight to be given to unproven allegations. That will depend on whether there is "sufficient basis" for the allegations and any countervailing factors, including the persuasiveness of the applicant's response.
3.52
In 2007, a policy paper was prepared for the Minister in response to this advice. In summary, the Department advised the Minister that:
- If it received allegations about criminal activity from another agency, such as Interpol, it would seek permission from that agency to disclose the information to the applicant.
- If the information could not be disclosed (for example, because of concerns about jeopardising an investigation), the applicant would be told that detrimental information had been received, but would not be given specific details. The processing of the citizenship application would then be put on hold until the applicant could be notified or the outstanding concerns had been resolved.
- In almost all applications involving unproven allegations, the applicant gets a police clearance from the relevant country, or provides proof that the charges have been dismissed, or withdraws their application. There is usually only one case each year where the applicant requests that their application be submitted without the issue being resolved.
- In such cases, the Department would provide the Minister with the relevant information and make a recommendation, but could not determine whether the applicant committed the alleged offences or whether charges had been laid for political or spurious reasons.
3.53
Mr Barker told us he did not find the advice he was given particularly helpful. In particular, he thought that the policy advice provided by the Department was not entirely consistent with the legal advice provided by Crown Law. In his view, the Crown Law advice had placed greater emphasis on the need to consider natural justice concerns.
3.54
He told us that, in individual cases, he expected the Department to provide some analysis of the information available, such as a summary of the key information that would support or disprove the allegations being made and the Department's opinion on the next steps in the process. Mr Barker told us that, on one occasion, he instead received a large file containing information on an applicant that had been submitted to the Department in defence of the allegations that had been made. Officials had not provided any advice about whether the material was relevant or addressed the allegations.
3.55
We consider that the difficulties faced by Ministers and the Department when unproven allegations have been made about an applicant are an important factor in understanding the background to Mr Liu's application for citizenship. They are also relevant when considering the advice given to Mr Jones about Mr Liu's application.
3.56
In summary, Mr Barker thought the Department should provide clearer guidance on where the truth of the allegations lay. Department officials, for their part, thought they were not in a position to determine such matters, that it was not their role to do so, and that the Citizenship Act clearly placed the obligation on the Minister to exercise judgement in such matters.
3.57
We acknowledge the Department's concerns about being seen to determine an applicant's guilt or innocence, and agree that – ultimately – the burden of proof is on the applicant to satisfy the Minister that the criteria in the Citizenship Act are met. We acknowledge, too, that the approach of simply presenting the Minister with all the relevant information might be intended to avoid giving the impression that the Department is attempting to interfere in the exercise of ministerial discretion.
3.58
However, we also understand the concern that Mr Barker raised. Ministers are required to deal with a heavy workload and, in the case of the Minister of Internal Affairs, citizenship decisions represent just one part of a broad portfolio of matters they are called on to deal with.
3.59
In our view, in those rare but difficult cases where the Minister is required to consider an application involving unproven allegations, the Department could do more to support ministerial decision-making.
3.60
Although it is for the applicant to satisfy the Minister that he/she is a suitable candidate for citizenship, and for the Minister to make the judgement call, these factors do not relieve the Department of the responsibility of carefully reviewing the material put forward and providing a view.