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Falling behind Australia on immigration and disability

New Zealand currently discriminates against disabled people and their families in immigration laws under health criteria.

These health criteria confuse illness with disability and have a simplistic view of costs. They are also harsher for disabled children than adults. Australia has recently changed similar laws to include a more complex understanding of cost and benefit. It is time we took a hard look at our own health criteria.

The freedom to move to another country is one of the most fundamental of human rights. This is because it is a vital safeguard for other rights. If your other rights are not being respected, it is important that you have the option to leave.

Article 18 of the Convention on the Rights of Persons with Disabilities makes it clear that disabled people have the right to choose their residence and nationality on an equal basis with others.

To gain residency in New Zealand a person and their family must have an acceptable standard of health. Immigration New Zealand says an acceptable standard of health means the person is:

  • unlikely to be a danger to public health
  • unlikely to impose significant costs or demands on New Zealand’s health services or special education services
  • able to perform the functions for which they have been granted entry (eg work).

The special education requirement means it is harder for a child to qualify than an adult. For adults, the conditions excluding them from residency are generally serious medical conditions. For children and young adults, in addition to those conditions, anyone under the age of 21 with significant hearing, vision or physical disability is denied residency as well as any student who qualifies for the Ongoing Resourcing Scheme.

A South African family found out about the special education criteria recently, when they were denied residence because their son was on the Ongoing Resourcing Scheme.

New Zealand allows people and their family on a work visa over two years, free access to health and education services. Education is regarded as an investment, yet under the current system, we are content to invest significant resources in a child and then deny them the chance to stay and return that investment.

There has been significant concerns about the immigration and disability in Australia. These concerns have lead to an inquiry by the Joint Standing Committee on Migration into the immigration treatment of disability.

In a submission to the Committee, the Human Rights Law Resource Centre stated a more complex understanding of cost is needed. The Centre argued that the Government when considering costs needs to take into account:

  • the contribution of people with disabilities to social and economic life in Australia;
  • the contribution of people with disabilities to Australia’s cultural diversity and social cohesion;
  • the contribution of individuals towards meeting the costs associated with their disability;
  • decreased costs associated with disability as barriers to participation in social and economic life are removed (in accordance with Australia’s obligations under the CRPD); and
  • possible advancements in medicine and assistive technology which would impact upon costs.

The Joint Standing Committee on Migration agreed stating:

“In the vast majority of cases, no account is taken of the applicant’s or their family’s ability to contribute socially and economically to the Australian community and, if this is indeed an economic cost to their immigration, whether or not this is outweighed by other factors such as the potential contribution of other skilled family members whose immigration is linked to or even dependent on the individual with a disability.”

These points fit well with Allyson’s blog about needing to value people’s contributions. They also fit well with a 2007 CCS Disability Action submission by former Policy Researcher Matt Frost. Matt stated:

“It should also be acknowledged that being disabled and having tremendous skills highly marketable in the labour market are not mutually exclusive. A good example of this is the case of Professor Stephen Hawking. It is clear that if Professor Hawking wanted to come to New Zealand he would be welcomed by the scientific community.  But as Professor Hawking has Motor Neurone Disease, he would be assessed by visa or immigration officials to have an ‘unacceptable standard of health’ and would be unable to enter New Zealand.”

Ultimately, the Joint Standing Committee on Migration found that the Health Requirement reflects old-fashioned approaches to disability and unfairly discriminates against those who have disability. They recommended significant changes.

 The Australia Government has accepted some of the Committees recommendations and is moving to a net benefit approach. This approach will see immigration officials consider the benefits someone may bring to the country alongside possible health costs. Meanwhile in New Zealand, we have not had a serious discussion about the outdated health criteria in our laws.

Under the current New Zealand law a family with one or both parents in employment will be denied residence because they have a child with a significant vision impairment. This assessment is not based on solid evidence of the future of that child. That child could go on to be a well regarded Disability Commissioner. The Royal Australasian College of Physicians notes that most people with disabilities do not require extensive government support.

The original point of the health criteria in immigration law was to protect against the spread of infectious diseases. The Royal Australasian College of Physicians notes that the laws in Australia have now confused acute illness with disability. This seems to be the case in New Zealand. Special Education is not based on health need. Impairment does not equal illness.

Does the current law match our pride about the way we respect and value human rights? Does it match our sense of giving people a fair go? Are we really happy to let Australia get one up on us and give disabled people and their families a fairer go than us?

Sam Murray
Policy and Advocacy Team

Note: This post focuses on federal Australian immigration law. Queensland is proposing changing state law to restrict non-citizen’s access to state services.