The Government’s apology to the Pasifika community in 2021 for the trauma caused by the 1970s Dawn Raids created a “reasonable expectation that dawn intrusions into houses would cease”.
That’s the verdict from King’s Counsel Mike Heron, who authored a report commissioned by the Ministry of Business, Innovation and Employment, which Immigration NZ sits within, after revelations in May that the dawn raid practices were still being used.
A Tongan man was detained after a dawn raid in South Auckland on April 19 when six compliance officers visited his home just before 6am and removed him from the premises while his wife and four children were inside.
One of the compliance officers told Heron they had no clue children were even present and the first they were aware they were in the house was when it was reported by RNZ a week later.
Heron’s investigations found forms used by immigration officers ahead of out-of-hours visits didn’t even require officers to consider whether there would be children present or involved in the case.
“It is perhaps unusual that no thought seems to have been given to out-of-hours activity by the relevant minister or senior officials”. – King’s Counsel Mike Heron
In the April 19 case, six compliance officers was considered appropriate because of the man’s flight risk and allegations of violence – two police officers were also nearby but didn’t take part in the operation.
The immigration officers spoken to stressed that the operation was “calm and respectful” and ultimately, they felt “let down by their managers”.
They told Heron the operation “did not have the hallmarks of a Dawn Raid” and their managers never properly communicated to the media the facts of the out-of-hours visit.
In addition, the compliance officers said there had been no change in advice or direction following the Dawn Raids apology, “nor any direction that this kind of activity (in rare circumstances) should not occur”.
Once the case became public the associate minister of immigration got involved and granted the man a six-month visa to explore a pathway to residence. By then he had been staying unlawfully well beyond what his RSE visa allowed, had got married, and was working illegally.
While some compliance officers spoken to during Heron’s inquiries said they were “mindful of the apology and purposefully did not conduct out-of-hours compliance visits on Pacific clients due to the history”, Heron noted there had been no change or update to legislation or policies “to reflect the apology or the principles underlying it”.
At the same time members of the Pasifika, Chinese, and Indian communities who took part in Heron’s investigation expressed they expected the practice to stop following the government apology.
In his report Heron sympathises with that position saying, “the government’s apology created a reasonable expectation within the Pasifika community that dawn intrusions into houses would cease”.
He agreed with the Pasifika community that the apology “does appear to ring hollow”.
“It is perhaps unusual that no thought seems to have been given to out-of-hours activity by the relevant minister or senior officials”.
During Heron’s review, he didn’t find a clearly-stated position from the Government about out-of-hours compliance visits.
The immigration minister at the time, Michael Wood, wrote to Ministry for Business, Innovation and Employment chief executive Carolyn Tremain in May, saying he remained “highly concerned” about out-of-hours operations reminiscent of Dawn Raid practices.
Wood wrote that his strong view was that those types of operations only occurred in situations where “absolutely necessary, such as when there is a clear threat to public safety, and that operational guidance is updated to reflect this”.
“The former minister seems to be, at least retrospectively, of the view that this kind of activity should not occur other than in specific circumstances. That view is shared by MBIE management but has not been passed on to compliance officers,” Heron says.
That ultimately boils down to what he describes as a “mismatch in expectations”.
One of the recommendations in Heron’s report said if there were to be a change in how compliance officers conducted cases, it needed to be stated clearly through amendments to legislation or policy changes.
“Practically speaking there would be cases, I expect they’d be very rare, where every effort is made but it’s just not been possible to contact the person who is the subject of an investigation, and I wouldn’t want to remove the ability for immigration officers to take action out of hours when it is an absolute last resort and appropriate to do so.” – Immigration Minister Andrew Little
Tremain told media on Monday that any legislative change was for the Government to address but in the meantime, guidance was already being updated for compliance officers to reflect the apology made.
“We accept that we should have reflected the Government’s apology in our guidance sooner and are prioritising putting this right.
“The new guidance will specify when and how out-of-hours visits to residential addresses should take place and make it clearer that they should only be carried out as a last resort when all other alternatives have been considered.”
While that work is done a pause on out-of-hours compliance visits remains and residential addresses are only visited between the hours of 8am and 6pm Monday to Friday.
Out-of-hours visits only make up 3 percent of all compliance visits, but Heron did note in his report that the number of deportations and out-of-hours visits are increasing since Covid restrictions lifted.
No attempt had been made to “implement the principles of the Government’s apology or alter out-of-hours visits in light of it”.
‘Hugely disappointing and uncomfortable’
Then-children of the 1970s Dawn Raids era spoke to Heron for his report and noted the trauma and haunting inflicted by the practice, and the fear they would be left parentless.
When the most recent case came to light earlier this year Deputy Prime Minister Carmel Sepuloni, who is Samoan, described the ongoing use of the practice as “hugely disappointing and uncomfortable”.
“We don’t expect it to happen and that’s why we’re asking questions about why this went down and how this went down,” she told media in May.
“We’re not the ones letting it happen, we’re now questioning how the officials allowed this to happen.”
At the time, Newsroom asked Sepuloni if she was aware of any memo or instruction given to Immigration NZ to change its operating procedures in the aftermath of the apology, to which she didn’t have an answer.
The same question was put to then-Immigration Minister Michael Wood, who told Newsroom “my absolute assumption and expectation is that Immigration NZ exercises its deportation powers in a way that is reasonable and proportionate, I would not expect to see this being common”.
He didn’t directly respond to whether he’d made it clear to senior managers or compliance officers that the practice should no longer be used, or whether operating procedures had been looked at to ensure the use of out-of-hours visits were “reasonable and proportionate”.
The only immediate action he took was to require the sign-off for out-of-hours visits to be made by the Deputy Secretary, rather than by compliance managers and the national manager of compliance.
Heron found in his investigations that the change was “overly prescriptive and introduces a decision maker who (with respect) is far removed from the operational expertise to assess whether this is truly a last resort for the client concerned”.
He said it was “administratively cumbersome and ultimately unhelpful” and recommended the decision-making powers remain with compliance managers and the national manager.
Sepuloni told media in May she couldn’t see how or why dawn raid practices would ever be necessary and Wood said he was “a little surprised” when he heard about the case reported by RNZ.
Immigration Minister responds
Andrew Little, who has taken over the portfolio from Wood, told media on Monday it would be “almost impossible” to make any legislative changes before the election but he would consider the report and take recommendations to Cabinet shortly.
One of the recommendations is to change the law to give clear guidance to those who carry out enforcement action about what is expected and Little hopes to take advice to Cabinet in the next couple of months.
He says the report makes it clear out-of-hours enforcement action should be used “but only as a last resort” and factors like whether children are there should be taken into greater consideration.
“Practically speaking there would be cases, I expect they’d be very rare, where every effort is made but it’s just not been possible to contact the person who is the subject of an investigation, and I wouldn’t want to remove the ability for immigration officers to take action out of hours when it is an absolute last resort and appropriate to do so.”
In the April 19 case, Little says having read the report he’s not satisfied that it reached the threshold of “last resort” enforcement action.
Little said the report was clear that compliance officers thought they were “just doing their job”, he accepted that and it was a matter of record that updated guidance wasn’t given after the Dawn Raids apology.
When it comes to enforcement action Little wants cultural considerations to be part of the process, and that means immigration officials working with ethnic community leaders and organisations to assist with contacting people in breach of their immigration arrangements.
He also apologised for the Government not taking action to update the operating procedures for compliance officers after the Dawn Raids apology and says it was “regretful” it didn’t happen earlier.
There are some changes that can be made faster than legislative ones, and in the next few weeks Little said he would meet with Immigration NZ about how to improve their administrative guidelines, including who has sign-off on out-of-hours visits.