The Government is concerned about “gaps” in the legal framework for dealing with immigrants who pose a terrorism threat but who cannot be deported.

The revelation comes from the first page of a briefing to then-Police Minister Chris Hipkins in October, which was mistakenly released to Newsroom as part of an Official Information Act response. The briefing was meant to be withheld in full under a section of the act that deals with official advice still under consideration.

Police officials said Immigration Minister Michael Wood was considering options “to manage the terrorism threat or risk of foreign nationals who cannot be deported, including where they remain in the community” and offered three case studies where this might be an issue.

“The case studies show gaps in the ability to apply risk management tools to foreign nationals of national security concern who cannot be deported,” they wrote.

Identification of these “gaps” likely occurred in relation to the September 3 terrorist Ahamed Samsudeen, who was unable to be deported because he had come to New Zealand as a refugee. There were also limited options to manage him in the community after he was released from prison, though subsequent law changes have expanded the law enforcement toolkit.

Currently, only people returning to New Zealand after involvement in terrorist acts overseas or who have been convicted of terrorism-related offences can be subject to onerous control orders. These orders, which require the approval of a High Court judge, can require people to remain at a specified location, bar access to the internet or forbid them from speaking with certain people.

While the Government is currently looking to broaden the scope of “terrorism-related offences” with a bill currently before Parliament, that applies more generally to all New Zealanders, not just foreign nationals. It also wouldn’t necessarily deal with the “gaps” identified by police.

The three illustrative case studies officials supplied to Hipkins involved a person who hadn’t committed a terrorism-related offence but still presented a high level of terrorism threat, a person who had been prosecuted for a terrorism-related offence but the prosecution was unsuccessful and a person who had committed an offence that didn’t fit under the definition of terrorism-related, such as murder or attempted murder.

In all three of these situations, the person would not be eligible for a control order. If they were a foreign national who could not be deported, police said, this would limit the options available to manage them in the community.

The information released to Newsroom doesn’t reveal details of the Government’s proposed solutions for this issue. RNZ reported in August that the Government was looking to loosen deportation rules for national security threats, but the October document shows that plan of action was potentially going to be revised.

A spokesperson for Wood told Newsroom the Government had been considering whether amendments to immigration laws were needed in light of the September 3 terror attack.

“The information you have received is a copy of some initial policy considerations. The matter is still under active consideration.”

Green Party MP Golriz Ghahraman called the document “alarming”.

“The failure to obtain a conviction basically means there wasn’t enough credible, reliable evidence that the person was engaged in the type of offending that we consider to be related to terrorism. What they’re saying is, in the absence of reliable, credible evidence, they still want to do something that very, very severely impacts this person’s life and rights,” she said.

“That is bad policing. They want to be able to deport people where their basis for suspecting that the person is a threat is not credible and not reliable.”

The Royal Commission of Inquiry into the March 15 terror attack found law enforcement had acted on prejudice in focusing nearly exclusively on Islamist terror threats and those same communities would be the target of these changes too, Ghahraman added.

“It’s absolutely not going to keep New Zealand safe. But it is going to impact the lives of the people who they deport – and in a really, really significant way,” she said.

“We’re talking about separating parents from their children, potentially. We’re talking about returning people to places that they’ve had to escape due to persecution. We’re talking about taking people out of study that they’ve paid thousands of dollars for. The remedy they’re asking for is incredibly significant and they’re asking for that in the context of not meeting any of the burden or standards of proof.”

Marc Daalder is a senior political reporter based in Wellington who covers climate change, health, energy and violent extremism. Twitter/Bluesky: @marcdaalder

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