Is It Lawful to Detain People Who Are Seeking to Be Recognized As Refugees as Lawfulness Does Not Only Depend on the Applicable National Law but Also Compliance to Article 31 of 1951 of the Convention Relating to Refugee Status and International Law

Dieudonne, Butoyi
Gledhill, Kris
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Master of Law
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Auckland University of Technology

New Zealand domestic law allows detention of individual asylum seekers and members of ‘mass arrival group’ despite not being concerned with the exceptions provided by the Convention Related to the Status of Refugees of 1951 and the Convention Protocol of 1967 and international law. Currently, In New Zealand there is no research conducted to evaluate the existing safeguards which can guarantee an avoidance of unlawful or arbitrary detention of asylum seekers. In my dissertation, legal comparative method is used and evaluates the current safeguards in New Zealand vis a vis international standards. Two international documents are of importance for this study namely the United Nations High Commission for Refugees Guidelines on the Detention of Asylum seekers of 2012 and Synthesis Report on Defending Migrants’ Rights in the Context of Detention and Deportation published in 2017. My dissertation shows that in New Zealand, asylum seekers without proper documents are being detained on facts that their identity is not certain, some also are detained based on security risks and members of ‘mass arrival group’ will experience automatic detention and might be in detention for a long period based on the current time an individual case takes to get the result of their interview. My dissertation also found some main domestic legal issues like asylum seekers are not allowed to seek for Judicial review before the tribunal has delivered its final determination and some decisions are not appealable. New Zealand domestic law, refugee law and international law have a similar goal which is to assist asylum seekers but differ on how to process them. My conclusion is that New Zealand should not be detaining asylum seekers on facts that they do not have proper documents or the way they arrived in New Zealand. An individual assessment should be conducted in order to avoid spoiling the good reputation of New Zealand in promoting human rights especially as detention is a bad action which has potentiality of affecting other human rights.

Penalty , Asylum seekers , Refugees , Article 31 , Individual assessment , Deterrence , Arbitrary detention
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