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Entry Residence and Departure Act 1985

NIUE LAWS
LEGISLATION AS AT DECEMBER 2006

ENTRY, RESIDENCE AND DEPARTURE ACT 1985

1985/106 – 1 January 1986

1 Short title

2 Interpretation

3 Administration

4 Application

5 Application for permanent residence

6 Granting of permanent residence

PART 1
IMMIGRATION

7 Restriction on landing

8 Permits

8A Conditions for granting of permits

8B Clearance requirements

9 Resident under permit

10 Prohibited immigrants

11 Application of deposits

12 Temporary prohibitions

13 Inspection of vessels

14 Deportation

15 Declarations

PART 2
DEPARTURE

16 Right to depart

PART 3
GENERAL

17 General powers of exemption

18 Regulations

19 Offences

20 [Spent]

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To regulate the entry, the residence, and the departure of persons from Niue

1 Short title

This is the Entry, Residence and Departure Act 1985.

2 Interpretation

In this Act –

"applicant" includes the applicant’s spouse and any other member of the applicant’s immediate family by birth or legal adoption, under the age or 18 years, who is included in the application;

"application" means the form required to apply for a permit as prescribed by Regulations;

"Director" means the Director of Health and includes a medical officer;

"immigration officer" means a person appointed under section 3(1);

"Minister" means the Minister of Immigration;

"permanent resident" means any person who has been granted permanent resident status under section 6;

"vessel" means any ship or aircraft and the meaning of "master", "voyage", "port" and any other such word or words which correspond with "vessel" shall be extended to have a meaning which corresponds with "aircraft";

"visitor" means any person not being a prohibited immigrant who enters Niue for a period not exceeding 30 days and who is in possession of a valid passport or other relevant travel document, and includes any one or more dependant members of the family of such person.

3 Administration

(1) There may be appointed by the Niue Public Service Commission an immigration officer who may hold office in addition to or in conjunction with any office in the Public Service.

(2) This Act shall be administered by the Immigration Officer under the control of Cabinet.

(3) The Cabinet may delegate to the Immigration Officer all or any of the functions or powers conferred upon Cabinet by this Act and may in like manner revoke any such delegation.

4 Application

(1) With the exception of section 15, this Act shall not apply to –

(a) The sea, land and air forces of any Commonwealth country; or

(b) Any person entitled to diplomatic privileges and immunities under the Diplomatic Privileges and Immunities Act 1968; or

(c) Any person entitled to consular privileges and immunities under the Consular Privileges and Immunities Act 1971; or

(d) Any person or class of persons in respect of whom the Cabinet in its discretion grants an exemption from all of the requirements of this Act.

(2) With the exception of section 15, Part 1 shall not apply to –

(a) A permanent resident of Niue;

(b) A Niuean who was born in Niue;

(c) A person other than a Niuean who was born in Niue;

(d) A person under the age of eighteen years either of whose parents is a permanent resident of Niue or, being a Niuean, was born in Niue; or

(e) A New Zealand citizen permanently residing in Niue prior to 1 January 1996.

5 Application for permanent residence

(1) Any person other than a visitor, who enters Niue on a permit issued under section 8, wishing to be granted permanent resident status, shall apply in writing to the Immigration Officer.

(2) Applications for permanent resident status shall be submitted by the Immigration Officer to Cabinet for its decision.

6 Granting of permanent resident

(1) Cabinet may grant permanent resident status to any person seeking it provided the following conditions are met –

(a) That the applicant has resided continuously in Niue for a period of 3 years immediately preceding the date of his application;

(b) That the applicant has satisfied Cabinet of his intention to reside permanently in Niue;

(c) That the applicant is of good character; and

(d) That the applicant has sufficient knowledge of the responsibilities and privileges attaching to being a permanent resident of Niue.

(2) No applicant shall be entitled to claim any period of service in Niue under the Niue Public Service or any international organisation for the purposes of subsection (1)(a).

(3) Any person who has been granted permanent resident status under this section and who remains absent from Niue continuously for a period longer than 3 years shall no longer be deemed to be a permanent resident.

(4) Where Cabinet has granted permanent resident status to any person it shall issue a certificate approved by Cabinet and such certificate shall be conclusive proof that such person is a permanent resident.

PART 1
IMMIGRATION

7 Restrictions on landing

(1) No person, other than a visitor to Niue, shall land in Niue from any place outside Niue unless and until –

(a) He shall be the holder of, or named in, a permit under section 8; and

(b) He shall have made and completed a declaration in such form as may be approved by Cabinet; and

(c) He shall have deposited or have had deposited such sum as the Immigration Officer may deem necessary to defray the cost of transporting such person to a place outside Niue where he will be permitted to land.

(2) Subsection (1)(c) shall not apply to any person who satisfies the Immigration Officer subject to such conditions as the Immigration Officer shall deem sufficient that such person is possessed of the means to enable his transportation from Niue and his maintenance in Niue pending such transportation.

(3) Any visitor landing in Niue who does not leave Niue within 30 days after the day on which he landed in Niue and who is not a holder of or named in, a permit issued in terms of section 8 to remain in Niue shall be deemed to be a prohibited immigrant within the meaning of this Act, but such visitor shall upon his departure from Niue, cease to be deemed to be a prohibited immigrant.

8 Permits

(1) An application for a permit to land or remain in Niue shall be in such form or forms as may be approved by Cabinet.

(2) The granting of the permit shall be at the discretion of the Minister for a period of up to 3 years and may be revoked as the Minister thinks fit.

(3) A permit may in the Minister’s discretion include any one or more dependant members of the immigrant’s family.

(4) A permit under this section shall be issued in writing in such form or forms as Cabinet may determine.

(5) No permit under this section shall be of any force or effect in respect of a person named therein who is a prohibited immigrant within the meaning of this Act.

(6) If the Immigration Officer is of the opinion that a permit has been obtained by fraud or misrepresentation he may withdraw the permit, and the permit shall thereupon cease to have any effect.

(7) Every permit to land shall cease to have effect at the expiration of 3 years from the date on which it was issued.

8A Conditions for granting of permits

(1) Subject to sections 4, 6, 7, and 17, every application for a permit to land or remain in Niue under section 8, may be granted by the Minister upon the grounds that –

(a) The applicant is not a prohibited immigrant under section 10; and

(b) The applicant has been sponsored by a permanent resident of Niue who is of Niuean descent, or a company, organisation, business or enterprise established or operating in Niue, or by the Government of Niue including any statutory corporations or bodies; and

(c) The sponsor has provided sufficient proof to the satisfaction of the Cabinet as to the sponsor’s ability to provide for the applicant suitable accommodation and means for the upkeeping and general welfare of the applicant, including employment confirmation as the case may be, and including an undertaking by the sponsor to the extent that the sponsor guarantees payment for all costs incurred for the purposes of repatriating the applicant on the expiration of his permit and for any other debts or liabilities incurred by the applicant during the duration of his stay in Niue where the applicant is unable to meet any or all of such costs.

(2) The sponsor’s obligation under subsection (1)(c) shall be for the duration of the applicant’s stay in Niue, or as the case may be, until the applicant is granted permanent residence.

(3) Where the applicant is sponsored for the purpose of taking up paid employment in Niue, it shall be necessary for the sponsor to prove to the satisfaction of Cabinet that there is no suitable person in Niue who could undertake such employment and that the applicant is qualified and suited for such employment.

(4) Every application under section 8 shall be duly signed by the sponsor who shall be deemed to be acting as agent for and on behalf of the applicant.

8B Clearance requirements

(1) In addition to the requirements under section 8A every application for a permit under section 8 shall be accompanied by –

(a) At least 2 character references of the applicant; and

(b) A police report and health clearances from the relevant officials of the applicant’s home country; and

(c) Any other information that the Minister may specify or require.

(2) For the purposes of section 8A and of this section, "applicant" shall be construed to included the applicant’s spouse and any member of the applicant’s family included in the application.

9 Resident under permit

(1) Every person who has lawfully entered Niue pursuant to a permit issued under section 8 shall, for the period specified in the permit from the date of his entry, or any extension of that period granted under subsection (2), be deemed to be for the time being lawfully resident in Niue.

(2) The Minister may extend the period during which a person who has entered Niue pursuant to a permit is deemed to be for the time being lawfully resident in Niue, and any such extension may be revoked.

(3) If the Minister is of the opinion that a permit has been obtained by fraud or misrepresentation he may, by notice in writing given at any time to any person to whom the permit was issued or to any person to whom the permit relates, revoke the continuing effect of the permit as an authority for such person to be lawfully resident in Niue.

(4) Any person who having entered Niue pursuant to a permit to land remains in Niue after the permit has ceased to have any effect shall be deemed to be a prohibited immigrant within the meaning of this Act, but such person shall upon his departure from Niue, cease to be deemed to be a prohibited immigrant.

10 Prohibited immigrants

(1) In this Act, "prohibited immigrant" means and includes –

(a) Any person who in the opinion of the Director is a mentally defective person within the meaning of Part 26 of the Niue Act 1966; or

(b) Any person who in the opinion of the Director is suffering from a notifiable disease as defined or declared in terms of the Public Health Act 1965; or

(c) Any person who is notified by Cabinet that such person’s presence in Niue is injurious to the peace, order, or good government of Niue; or

(d) Any person who at any time within 2 years prior to the date of his arrival in Niue has been convicted of or been released from imprisonment after conviction in any place in respect of any criminal offence there punishable by imprisonment for more than one year.

(2) It shall not be lawful for any prohibited immigrant to land in Niue.

(3) Any prohibited immigrant may be arrested by any constable and placed and detained on board the vessel by which he arrived in Niue or on board any other vessel about to leave Niue, and shall pending his removal by such vessel be detained in such custody and in such place as the Immigration Officer shall direct.

11 Application of deposits

(1) The monies lodged with the Immigration Officer under section 7 shall be repaid to the person depositing the same at the end of 3 years from the date of the deposit or on the departure of that person from Niue whichever shall be the earlier, but the Immigration Officer shall deduct from the said monies any cost incurred by the Government in connection with the maintenance of such person in Niue or his deportation therefrom.

(2) Should the person who deposited the monies die before the said monies have been refunded, the Immigration Officer shall pay the same to the legal representative of such person, but less any of the costs aforesaid and the costs if any of burial paid by the Government.

12 Temporary prohibitions

(1) The Immigration Officer may, by notice in writing under his hand delivered to the master of any vessel arriving at Niue, prohibit the landing in Niue of the master or any officer or member of the crew or passenger unless and until the master shall have executed and delivered a bond, with 2 sureties to be approved by the Immigration Officer in such sum as the Immigration Officer may determine, conditioned for the due departure of the master, officers, crew of the vessel and passengers when the vessel resumes its voyage from Niue.

(2) Until the Immigration Officer by further notice in writing under his hand delivered to the master of such vessel notifies that a bond as aforesaid has been executed and delivered to his satisfaction the master or any officer or member of the crew or passengers of such vessel shall not be permitted to land in Niue.

(3) If the Immigration Officer has reason to believe or suspects that any person arriving in Niue from beyond the seas or proposing to land in Niue is a prohibited immigrant, or is proposing to land in Niue in breach of this Act the Immigration Officer may, by notice in writing under his hand delivered to such person, temporarily prohibit that person from landing in Niue.

(4) Every notice given under subsection (3) shall, unless sooner revoked, expire at the end of 48 hours after the time when it was delivered to the person to whom it relates.

(5) Any person landing in Niue in breach of a notice given under this section commits an offence.

13 Inspection of vessels

(1) For the purposes of ensuring compliance with this Act the Immigration Officer may board every vessel arriving from places beyond Niue forthwith after its arrival.

(2) The master of the vessel shall forthwith deliver to the Immigration Officer the passenger list and crew list, or a true copy of it, and shall truly answer any questions relating to the passengers and crew which may be put to him for the purposes of this Act.

(3) The master of the vessel shall make suitable arrangements to the satisfaction of the Immigration Officer to enable him to inspect and examine each passenger and each member of the crew, and shall also provide such writing materials and accommodation as may be required by that officer for the purposes of his inspection and examination.

(4) The Director shall inform the Immigration Officer as to any person on board the vessel who in his opinion comes within the restrictions of section 10(1)(a) or (b).

(5) The Immigration Officer may put such questions as he deems necessary for the purposes of this Act to any passenger or member of the crew.

(6) If the master or any passenger or any member of the crew fails or refuses to answer any question put under this section, or answers any such question in a manner which is false or misleading in any material particular, he shall be guilty of an offence.

(7) If any passenger or member of the crew of a vessel arriving at Niue from a place beyond the seas leaves the vessel before the Immigration Officer has notified the master that all examinations, inspections, and inquiries required to be made under this section have been completed, such person and the master shall each be guilty of an offence.

(8) If any person boards any ship arriving at Niue without the authority of the Immigration Officer he shall be guilty of an offence.

(9) The master of a ship or any officer or members of the crew of a ship if so directed by the master, shall have full power and authority to prevent any person on board the ship landing in Niue in breach of this Act and for that purpose to use such force and means of restraint as may be reasonably necessary.

14 Deportation in writing

(1) Cabinet may in writing order any immigrant to leave Niue in any of the cases following, that is to say –

(a) If the Cabinet has reasonable cause to believe that such immigrant is a source of danger to the peace, order, or good government of Niue;

(b) If Cabinet has reasonable cause to believe that the immigrant is without sufficient lawful means of support;

(c) If the immigrant is convicted in Niue of an offence punishable by imprisonment for one year or upwards; or

(d) If the immigrant is convicted of an offence under section 19.

(2) "Immigrant" means a person now or hereafter lawfully in Niue who is not –

(a) A Niuean who was born in Niue;

(b) A person belonging to any of the Polynesian races whether by pure or mixed descent who was born in Niue;

(c) A person under the age of 21 years either of whose parents is a permanent resident of Niue or being a Niuean or any person defined in paragraph (b) was born in Niue.

(3) If any immigrant remains in Niue for 30 days after the day on which an order made under subsection (1) is served upon him, he shall be liable to a fine not exceeding 5 penalty units or to imprisonment for a term not exceeding 6 months or to both.

(4) An order made under subsection (1), duly authorised by Cabinet shall be conclusive evidence that the order has been duly made, and that all steps have been taken, all directions given, and all conditions fulfilled which may be necessary for the validity thereof.

(5) When any such order has been made Cabinet may at the same time or at any time thereafter and either before or after the expiration of the period of 30 days mentioned in subsection (2), order any constable to arrest the immigrant and to detain him in custody until he can be placed and detained on board a vessel about to leave for a port beyond Niue.

(6) No person who has been ordered to leave Niue as aforesaid shall at any time after compliance with the order, or after having been placed on board any vessel about to leave Niue, return to or land in Niue without the authority of Cabinet.

(7) Every person who returns to or lands in Niue in breach of subsection (5) shall be guilty of an offence.

15 Declarations

(1) No person shall enter Niue from any place outside Niue unless and until he has made and delivered to the Immigration Officer a declaration in the form approved by Cabinet and no child shall enter Niue unless and until a declaration in the said form has been made and delivered as aforesaid on his behalf by an accompanying adult.

(2) Subsection (1) shall not apply to a person entering Niue as the master or captain or member of the crew of the ship or aircraft which he enters.

PART 2
DEPARTURE

16 Right to depart

Subject to this Act and to any restrictions imposed by or under any other enactment, every person in Niue shall be at liberty to depart from Niue.

PART 3
GENERAL

17 General powers of exemption

(1) Cabinet may exempt from all or any of the requirements of this Act any person or class of persons entering or desiring to enter Niue or to remain in Niue.

(2) Any exemption granted by Cabinet under this section shall be subject to such conditions as Cabinet may impose.

(3) Every person who commits a breach of or fails to observe any such conditions is guilty of an offence against this Act.

(4) Cabinet may order in writing the person having custody of any person arrested and detained in custody under this Act to release such person from that custody upon such conditions as Cabinet may impose.

(5) Every person released from custody under subsection (4) who commits a breach of or fails to observe any conditions imposed upon his release guilty of an offence against this Act.

18 Regulations

(1) The Cabinet may make all such regulations as may be deemed necessary or expedient for giving full effect to this Act and for the due administration of it.

(2) Without limiting the generality of subsection (1), the Cabinet may make regulations for all or any of the following purposes –

(a) Prescribing forms for the purposes of this Act;

(b) Prescribing fees in respect of any matters under this Act and providing for exemptions from or the refunds of any such fees, in whole or part, in any case;

(c) Prescribing any procedural matters in relation to any applications under this Act;

(d) Prescribing any procedural matters in relation to proceedings on appeal from any decisions on any applications under this Act;

(e) Exempting any class of person from the requirement to obtain or to hold any permit;

(f) Prescribing conditions in respect of permits or any type of permit;

(g) Prescribing the duration, or maximum duration, for temporary permits or for any type or class of temporary permit;

(h) Prescribing offences in respect of the contravention of or non-compliance with any regulations made for the purposes of this Act and the amounts of fines that may be imposed in respect of any such offences.

19 Offences

(1) Every person is guilty of an offence against this Act who –

(a) Lands or remains in Niue in breach of any of the provisions of this Act; or

(b) Wilfully assists any person to evade or contravene any of the provisions of this Act; or

(c) Obstructs or hinders any officer in the discharge of his functions or duties under this Act; or

(d) Wilfully assists a prohibited immigrant unlawfully to land or to remain in Niue; or

(e) Makes any declaration or signs any application under this Act which is wilfully false or misleading.

(2) In every case where a prohibited immigrant unlawfully lands in Niue the master, charterer, and owner of the ship by which such prohibited immigrant was brought to Niue are jointly and severally liable to a fine not exceeding 2 penalty units in respect of each such immigrant, and also to defray the expenses incurred by the Government of Niue in removing any such immigrant from Niue and in detaining and maintaining him in Niue pending such removal.

(3) A certificate under the hand of the Immigration Officer shall be conclusive evidence of the amount of any expenses incurred as mentioned in subsection (2).

(4) Any expenses which are defrayable as provided by subsection (2) shall be recoverable against all persons jointly or any persons severally by whom the same are defrayable as a debt due to the Crown.

(5) Every person to whom a permit has been granted is guilty of an offence against this Act who –

(a) Fails to comply with the conditions, or any of them subject to which the permit was granted; or

(b) Remains in Niue beyond the time or any extended time for which a permit was granted or, in case of any such permit revoked by the Minister, if he does not leave Niue within such time after the revocation of his permit as the Minister prescribes.

(6) Every person who wilfully makes any false or misleading statement or representation for the purposes of obtaining any permit under this Act and who obtains such permit and enters or remains in Niue in accordance therewith is guilty of an offence against this Act.

(7) Upon the conviction of any person of an offence under subsection (6) the permit which was obtained by the false representation or statement shall become of no effect and shall be deemed never to have been granted.

(8) If the master, owner, or charterer of any vessel about to leave Niue refuses without lawful excuse to receive and retain on board any person to be deported from or otherwise lawfully ordered under this Act to leave Niue, whether temporarily or permanently, together with the escort if any accompanying such person, he is guilty of an offence against this Act.

(9) Any person guilty of an offence against this Act is liable to a fine not exceeding 5 penalty units or to imprisonment for a period not exceeding 6 months or to both.