Aisling Smyth has lived in New Zealand for eight years but faces deportation as Immigration NZ won't allow her to apply for residency because of her multiple sclerosis diagnosis. Photo: Supplied

The Immigration Minister plans to review medical requirements for permanent residency that have been criticised by disability advocates for breaking the UN convention on human rights

Migrants facing deportation due to their medical conditions are calling for an overhaul of an immigration policy that rejects residency based on their cost to the public health system.

Aisling Smyth has lived in New Zealand for eight years. The 34-year-old was diagnosed with Relapsing-remitting Multiple Sclerosis (MS) in 2013, and has managed it with medication since a flare-up in 2016.

“Since starting on the medication I have had no relapses, or new activity on MRIs. My MS is well-managed, and my long-term prognosis is excellent. I am otherwise fit and healthy.

“I am a super keen snowboarder and live for the winter snow. My MS won’t stop me living my life to the fullest, but Immigration NZ is trying hard to do so.”

MS is among a list of more than 40 medical conditions, including HIV, deemed to impose “significant costs” on the public health system and/or education services.

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. 

An Immigration NZ medical assessor determines whether the applicant is unlikely to impose significant costs on health services to pass the medical test. If applicants don’t meet the Ash requirements then they can seek a medical waiver.

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.

Smyth’s medication costs exceed this threshold and because of her MS she has been told she is a “burden” on our public health system and has therefore missed out on a medical waiver.

“They’re not looking at the fact that I’ve been here nearly eight years and have established really strong roots here. I’m not disabled in any way at all. I just have unfortunately been diagnosed with something.

“I have built a life here in New Zealand. I have a partner, a steady job, and many friends. Immigration NZ doesn’t care and they want me to throw all of that away as if none of it matters.”

Smyth has started an online petition to put pressure on Associate Immigration Minister Phil Twyford, who has the power to grant medical exemptions and residency.

“It was recently revealed that Phil Twyford granted residency to three people who had had 10 criminal convictions against them, all but one conviction while in New Zealand. So he has the power to step in and overturn Immigration NZ’s final say.”

UK migrant Aisling Smyth says her MS won’t stop her from living her life to the fullest, but Immigration New Zealand is trying hard to do so. Photo: Supplied

Twyford has been approached for comment.

This is one of Smyth’s final options as she faces the prospect of deportation at the end of this month.

Smyth is currently on an essential skills visa that has been extended twice due to Covid since her residency application was rejected in 2019. 

“I’ve got less than 40 days to lodge an appeal. I don’t want to have to just give up on my future. I also don’t want to travel back to the UK. I’m immunocompromised so the thought of having to travel the whole way back through all of the hubs with Covid frightens the life out of me.”

Calls for a policy change

Disability advocate Juliana Carvalho knows Smyth’s situation all too well.

Originally from Brazil, Carvalho who is paraplegic and has the autoimmune disease lupus, spent more than seven years fighting INZ’s “discriminatory” policy that rejected two residency applications because of her disability. 

After exhausting all her options, Carvalho was eventually granted residency last year.

“My only chance to remain in New Zealand was to overstay to become liable for deportation and then eligible to appeal on humanitarian grounds,” Carvalho says.

These are the lengths Immigration NZ’s policy was forcing people to go to for an opportunity to live in New Zealand, she says.

“I decided I’m not going anywhere because the only reason my visa was being denied was because I’m disabled. So in a deliberate act of civil disobedience I overstayed. It was a big risk, but it’s about human rights. It’s about disability rights.”

Carvalho presented her petition with 35,000 signatures to Parliament in May this year, calling on the Government to review Immigration NZ’s policies that assess residence applications on migrant’s cost on health and education services. 

She would also like the Ash test to be abolished.

“It’s humiliating. I had a high-profile career in Brazil which is evidence of my potential contribution. And they really undermined everything to exacerbate my potential costs. So it was really ridiculous. 

“They made me do a mental assessment test, to test my mental ability. And I’m just physically disabled, you know, it’s pretty bad. I spent years and years hearing, ‘you are a burden’, ‘you cost too much’, ‘you have no value’. At some point you start to believe that narrative. And that can have a huge impact in someone’s life.”

Carvalho, who is writing about her experience in a book, said it was ironic that after years of the Government making her feel like a burden she was congratulated for her advocacy of disability rights.

“It’s also problematic that for kids, their potential contribution is considered. So INZ has a crystal ball? Elon Musk, or Frida Kahlo would not be allowed to stay in New Zealand because of their impairment.”
– Juliana Carvalho, disability advocate

Last month Health Minister Andrew Little wrote to Carvalho for her nomination by Blind Low Vision NZ for the 2021 Minister of Health Volunteer Awards.

In the letter he says: “I appreciate your ongoing efforts to improve our country’s public health and disability system and I wish you well for the future.”

Carvalho says New Zealand’s immigration policy was breaking its commitment to the UN convention on human rights by refusing migrants visas because of their health.

“It’s also problematic that for kids, their potential contribution is considered. So INZ has a crystal ball? Elon Musk, or Frida Kahlo would not be allowed to stay in New Zealand because of their impairment.”

Minister’s review

Immigration Minister Kris Faafoi says the Government plans to review the Ash threshold and an initial review of specific conditions is being considered, specifically a recommendation to remove HIV infection from the list of high-cost conditions. 

“The details of the health requirements are still being worked through and will be made publicly available once immigration instructions have been signed,” Faafoi says.

The Ash requirements for the newly announced one-off 2021 Resident Visa will not be reviewed, he says.

“The health requirements will be limited and will only screen for the most serious health conditions.

“Also, if an applicant for the 2021 Resident Visa has provided medicals to Immigration NZ with an application that was issued less than 36 months ago, and the applicant was assessed as having an acceptable standard of health, they will not need to provide further medicals for the 2021 Resident visa.”

Green Party MP Ricardo Menéndez March says his party is seeking a full review of the “ableist” policies, ideally a removal of the health criteria qualifying residency.

“Our immigration laws have been deeply problematic, because effectively they’ve been exempt from applying a human rights lens to the decisions that it makes.

“From what I understand the [$41,000 threshold] hasn’t been reviewed in quite some time. It isn’t reflective of healthcare costs of today so it’s really easy for people to meet that threshold…

“The fact that we are reducing somebody to you know, the cost that they put in the healthcare system and I think in the end the discrimination that it creates towards people with health conditions disabilities that ultimately is fundamentally wrong.”

He says Carvalho’s experience illustrated that the Immigration & Protection Tribunal appeals process for getting residency was not fit for purpose.

“She had to spend tens of thousands of dollars and it was about an eight-year process for getting that decision overturned,” Menéndez March says.

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