After a special exemption, Aisling Smyth can finally apply for residency following multiple failed attempts due to Immigration NZ’s medical requirement
Following years of rolling visas and battling to stay in the country, UK migrant Aisling Smyth has been granted a medical waiver by Associate Immigration Minister Phil Twyford enabling her to apply for the 2021 Resident Visa.
Smyth had been on an interim visa since her residency application was rejected in 2019 despite having lived here for eight years. Her application was rejected because of Immigration NZ’s medical requirements.
“Immigration NZ was harder to deal with than my MS [Multiple Sclerosis]. This has been an uphill battle for two years. I’m really happy but I’m still angry that I’ve had to go through all of this and that it’s come at a huge cost. It’s really affected my mental health,” Smyth says.
“Some people might have the view like, ‘Oh, just go back to the UK’ but I’ve been here nearly nine years. Most of my 20s and 30s I’ve spent here you can’t just give it up and go. I’ve got a life here. I’ve got a partner here everything you know, a livelihood.”
Migrants seeking to apply for a work to residence visa have to complete a character test, which includes a police check, as well as a medical check known as the Acceptable Standard of Health (Ash) test.
For more than a decade, Immigration NZ has kept the threshold of “significant costs” at $41,000 per year within a period of five years from the date the assessment against health requirements is made, or a lifetime if it is a chronic condition.
The agency has a list of more than 40 medical conditions, including HIV, deemed to impose “significant costs” on the public health system and/or education services.
New Zealand’s publicly-funded health services are tax-funded and provide universal coverage for citizens, residents, and people on work visas staying for more than two years.
Smyth’s medication costs exceed this threshold, but after consideration, Twyford granted her a medical waiver to get an essential skills visa which would enable her to apply for residency.
When approached for an interview, Twyford’s office said he could not comment on individual cases.
Given a number of health criteria (including MS) for the 2021 Resident Visa were also removed, Smyth can apply for the one-off residency visa.
However, conditions such as tuberculosis, haemophilia, and those requiring dialysis or full-time care are still excluded from passing the Ash test.
But the opportunity to become a resident means she can continue fighting for an overhaul of the health criteria.
“I’m one of the lucky ones. But in New Zealand, if you’ve got any physical disability, or a chronic condition that’s on the list, you’re going to, you’re going to have to go through what I went through.
Green Party MP Ricardo Menéndez worked closely with Smyth to get her the waiver.
“This decision is further evidence that our Ash policy is not fit-for-purpose and needs to be scrapped as part of the broader review of our immigration settings.”
–Ricardo Menéndez, Green MP
In a letter to Menéndez regarding Smyth’s medical waiver, Twyford wrote he had decided to grant her a three-year work visa as an exception to instructions, subject to her meeting the other immigration requirements like character tests.
Both Smyth and Menéndez would like for this to be permanently scrapped too as it breaches the United Nations Convention on the Rights of People with Disability, the Human Rights Act 1993 and the United Nations Convention on the Rights of Children.
Menéndez says after paring back its strict medical criteria for the 2021 Resident Visa it was illogical for the Government to bring it back as criteria for future residency pathways.
“No one should be at the mercy of a minister for their human rights to be recognised. It should not be dependent on your access to MPs or your ability to pay fees for advisers or lawyers either,” he says.
“This decision is further evidence that our Ash policy is not fit-for-purpose and needs to be scrapped as part of the broader review of our immigration settings. The Government itself temporarily removed several barriers for disabled migrants as part of the one-off residency programme, but we need enduring policy change.”
Immigration Minister Kris Faafoi has previously said he plans to review the Ash threshold.
