The government says it was not possible to deport the man at the centre of last week's terror attack, because he was appealing a decision to cancel his refugee status.
But the National Party and some legal experts believe he could have been kicked out of the country.
Refugee Ahamed Samsudeen was shot dead by police after a violent rampage at a New Lynn supermarket where he stabbed several people with a knife he had taken off the shop shelf.
In 2017 the terrorist was stopped from travelling to Syria to become a foreign fighter and was twice convicted of possessing objectionable extremist material.
In July this year he was released from prison under supervision and was being monitored 24/7 by police.
Samsudeen, a Sri Lankan national was initially denied refugee status in 2012 but successfully appealed the decision.
It was later discovered documents he used in his application were fake and in February 2019 his refugee status was cancelled.
But he appealed, stalling his deportation. At the time of the attack, two and half years later, the appeal still had not been heard.
Immigration Minister Kris Faafoi told Checkpoint legal advice kept Immigration from deporting the New Lynn terrorist.
“He wasn’t officially a protected person so we didn’t have that option available to us. And Immigration did look at 164 (3) of the Immigration Act to see if we could do that. But again, because of the advice that we were given, we had to wait for that IPT [Immigration Protection Tribunal] approval to come through.”
“We had advice from Crown Law on 8 July … that we no longer had the legal means to detain him for deportation pending the IPT trial.”
