166 Days at the Border: why the detainment of asylum seekers is perpetuating harm

Emily Hollis (she/her) and Dara Jagose (he/him)

New Zealand’s justice system is rife with flaws. The Waikeria prison riots brought inhumane living conditions and a strain on the system into public view. Our prison statistics consistently show the effects of inherent racism at play. However, structural racism and punitive attitudes aren’t the only issues influencing the makeup of our prison population, and the detention of people seeking asylum in remand prisons is an issue New Zealand finds convenient to ignore. 

New Zealand presents a philosophy of ‘kindness’ to the international stage, but many people seeking asylum here remain disenfranchised and vulnerable, without the justice that they deserve. The New Zealand Government is party to international treaties protecting the right to seek asylum, including the 1948 Universal Declaration of Human Rights. People seeking asylum escape from dangerous circumstances where they face persecution for reasons such as race, religion, or gender. One refugee came to New Zealand fleeing the decades-long Somali Civil War, in which he witnessed multiple family members die due to the horrific conditions. 

People seeking asylum hope to recover their human rights, and aspire to a future we all deserve. For some, however, they are met with detention in prison, rather than freedom. 

Prisons are typically used as places of retribution, incapacitation, deterrence, and rehabilitation for people who have broken the law. People seeking asylum often have not been convicted of crime, yet are still subjected to traumatising prison conditions. They may be subject to violence, intimidation, and bigotry from the other prisoners, not to mention being classed as ‘criminals’ themselves. Some asylum seekers have been detained for longer than the maximum sentence for assault—without any conviction. 

Asylum seems tantalisingly close outside of the dank prison walls. Is this really the ‘protection’ that is promised to an asylum seeker? And why is this issue so unheard of? 

What is the process of detainment? 

Two types of refugees are recognised in New Zealand: quota refugees and convention refugees. Quota refugees enter New Zealand under our refugee quota, through the UNHCR resettlement programme. They become permanent residents when they arrive. However, convention refugees are people seeking asylum whose claims have not yet been accepted. Asylum may be claimed upon arrival at New Zealand’s border, or from within the community.

Detainment occurs at one of these two points. When someone claims asylum at the border, they often enter with fake passports that enable them to leave their home country safely. This method is protected under the 1951 Refugee Convention. After the claimant has submitted a written statement, been interviewed, and had a report written on their case, a decision is made on whether the claim is credible. If there is reason to believe that the claimant might abscond (leave without warning), pose a threat to national security, or if there are doubts surrounding their true identity, they can be legally detained in prison. 

The Government and Immigration New Zealand (INZ) maintain that only a small fraction of people are detained in prisons, and that their policy is to keep asylum seekers detained for the shortest time possible while assessing their claims. INZ policy states that the longest a claimant will be imprisoned is 28 days. However, 

over the last five years, the average time asylum seekers have spent imprisoned has been 166 days—nearly six times this ‘maximum’ time frame. “[Detention is] longer than the claim process. It seems to be used as a deterrent to asylum seekers”, said the Asylum Seekers Support Trust’s General Manager. Approximately 30% of people seeking asylum in New Zealand in the last ten years have been detained under the Immigration Act.

A recent case saw an asylum seeker imprisoned for three years, without trial or conviction. He was eventually permitted to stay permanently. 

After the Immigration Amendment Act 2013 was passed, a group of 30 people claiming asylum is deemed a “mass arrival”. Under the new law, every member of that group could be detained, regardless of perceived threat. Changes in policy such as this have brought asylum seekers and advocates to question the rationale behind them. Many asylum seekers believe that the immigration system is intentionally set up to deter them from seeing New Zealand as a place of refuge. “They want you to give up”, reported one asylum seeker. When public opinion is already shaped by politicians calling refugees “queue jumpers”, using legislation to deter refugees is doubly alienating. Time is a resource wielded by INZ, but a precious commodity convention refugees are not privileged with. 

Why does New Zealand detain people seeking asylum? 

New Zealand detains people seeking asylum under the Crown’s right to control and secure its borders. Under New Zealand law, people seeking asylum may be detained if they pose a risk to national security, if there are doubts as to their true identity, or if there is a risk of them leaving secretly and hurriedly to avoid arrest. Asylum seekers may arrive in New Zealand lacking valid identification to prove their identity, and can consequently be suspected to pose a risk to national security. However, people seeking asylum are seldom criminals. They are fleeing a state that could persecute them and their families, making legal immigration impossible. 

In April 2020, during the COVID-19 pandemic, INZ released all but one detained asylum seeker. The prisoners were released because it was accepted that they posed little-to-no security risk to the general public, and that it would be more harmful to keep them detained in close quarters and possibly risk the spread of COVID-19. This raises questions as to why the existence of a global pandemic suddenly erased the perceived ‘threat’ that asylum seekers pose. Are detainees really the issue? Or are there more spurious reasons for the detaining of claimants? 

Detention is justified as a control mechanism for perceived security threats. Years of detention under horrific conditions, accompanied by immense suffering and a total lack of conscience from the Government, leaves colossal damage in its wake—

upon children, families, and individuals. By its very nature, this policy fails to acknowledge the fundamental right to freedom from violence and fear. 

What is the harm that is perpetrated by this detainment? 

Aside from the spiralling labyrinth that is the asylum seeking process, one of the biggest harms of detainment is the perpetuation of trauma. Within prisons, asylum seekers can be subject to physical and verbal abuse, lack access to proper care for their wellbeing, and face fear and uncertainty of what will be their outcome. Detainees are supposed to be separated to the highest extent practicable. However, this is often unsatisfactory. One Muslim man was targeted by prisoners in Mount Eden prison after the abhorrent attacks of March 15. Xenophobia towards asylum seekers is perpetuated through detention, further alienating them as criminals. This system is actively harmful to those already experiencing the trauma of seeking asylum.

Speaking to a public lecture earlier this month, convention refugee Behrouz Boochani highlighted that while NZ is publicly lauded, and Australia publicly vilified, for their refugee response, their policies are not all that different. 

The lack of conscience and reasoning for detention by INZ cannot be ignored. The harm perpetrated on asylum seekers throughout an incessant process, followed by imprisonment, is immense; a living hell which resides on the fringes of New Zealand’s shiny image. We wouldn’t like to admit that our Government is in breach of human rights—that is a problem for foreign nations. However, the reality is that arbitrary or disproportionate detention is a human rights violation, and it is happening right here. Here, we speak of ‘kindness’. Kindness must surely mean freedom, compassion, and justice for people seeking asylum.

How you can get involved

The issue of asylum seekers being subjected to detention is one that lies in the periphery. Raising the public profile of this issue through talking to family, friends, or the person sitting three empty seats across from you in a lecture, can help to shed light on this shrouded topic.

Amnesty International, Asylum Seekers Support Trust, and ChangeMakers Resettlement Forum are charitable organisations seeking to ameliorate the condition of asylum seekers’ lives through ending the policy of detention. Keep an eye out for the broader campaign and petition from these groups, launching this month, through their Facebook and Instagram pages. Resources and further information can also be found on these pages, which can broaden our knowledge and equip us to hold conversations in this space. 

Social media is a useful tool we can use to amplify this message, and liking, sharing, or tagging your mate in a post can help. For this campaign to be effective, decision-makers need to know that ordinary Kiwis are concerned with these practices. 

Even if this practice affects a small group of people seeking asylum, it has a profound impact on those trying to come to New Zealand and exercise their right to protection and safety.