"Burdens" and Borders: Disability Discrimination in New Zealand Immigration Law
By Lauren White
Saying there is discrimination in Immigration Law is akin to pointing out the sky is blue. It is so intrinsic that there is a section in the Immigration Act 2009 dedicated to recognising that “…immigration matters inherently involve different treatment on the basis of personal characteristics.”[1] This discrimination is not necessarily negative – it allows states to both protect and advance the interests of its citizens.[2] However, where this discrimination is based on personal characteristics that are beyond a person’s control, there is a moral imperative to scrutinise the reasons for this discrimination. The Health Requirements for permanent residency are in particular need of scrutiny. People with disabilities face excessive discrimination as a result of these requirements, and therefore the policy should be reviewed.
What are the Health Requirements?
The Health Requirements established by Immigration New Zealand (INZ) are extensive, stopping just short of explicitly banning disabled persons from acquiring permanent residence visas. Although the Immigration Act 1993 establishes that there can be eligibility criteria based on health, the Act itself does not define these requirements.[3] Instead, they are found in INZ’s Operational Manual.
Anyone applying for a New Zealand visa must have an “acceptable standard of health” for several reasons, but most notably to ensure that they will not impose significant costs or demand on health or special education services.[4] An applicant for permanent residency will fail if they:[5]
Have condition(s) that will likely require health services worth over $41,000; or
Have condition(s) that will likely require health services where current demand is not being met; or
Are likely to qualify for any special education services funded by the Ongoing Resourcing Scheme (ORS); or
Have condition(s) that fall within the extensive range of conditions listed at A4.10.1 – including conditions ranging from uncontrolled epilepsy to autistic spectrum disorders, from paraplegia to any psychiatric illness that has required hospitalisation.
Across the board, it is irrelevant whether an applicant can privately access these services – the mere possibility that they will require social services is enough.[6]
Are These Health Requirements Discriminatory?
While the Health Requirements do not explicitly ban people with disabilities from attaining a permanent residence visa, they are so extensive that they effectively act as a blanket ban on disabilities. An individual is discriminated against when they are treated worse because they belong to a “socially salient” group.[7] A person with a disability facing mistreatment because of their disability is a classic example of this. But is this the case with the Health Requirements?
The Government has asserted that “having a disability does not pre-determine whether a person has an acceptable level of health.”[8] On the face of it, this is true. Nowhere do the requirements state that having a disability automatically disqualifies you from having an acceptable standard of health, and both disabled and non-disabled persons have to satisfy INZ on these grounds.[9] However, to take these requirements at face value is to be wilfully ignorant of the unequal treatment.
The inclusion of a list of conditions that are automatically considered to impose significant costs and demands is tantamount to a blanket ban against disabled persons. As previously mentioned, the list is extensive – conditions that weren’t initially listed can be read in due to its broad and non-exhaustive nature.[10] There would be very few types of disability that would not be captured under that criteria. Moreover, the ORS scheme is primarily targeted at children with disabilities, and so in barring anyone who even qualifies prevents any children with disabilities or impairments from settling in New Zealand.[11] INZ has not provided an explanation as to why $41,000 is the threshold for excessive costs, so I cannot speak to the reasonableness of that requirement.
While all permanent residence visa applicants are measured against the standards set out in the Health Requirements, people with disabilities are disproportionately targeted by the criteria. The Health Requirements are clearly structured to keep people with disabilities from immigrating to New Zealand.
Is This Discrimination Justified?
Although the breach of individual rights can be reasonably justified, the Government has a duty to ensure that the intrusion on these rights is as minimal as possible. The Health Requirements breach the rights of people with disabilities at both a domestic and international level. At a domestic level, the Bill of Rights Act 1990 promises the universal right to freedom from discrimination.[12] Although the right to freedom of movement is not guaranteed to non-citizens by the Bill of Rights Act, it is guaranteed to people with disabilities by Article 18 of the UN Convention on the Rights of Persons with Disabilities, a convention which New Zealand has signed and ratified.[13] Part of this right to freedom of movement is the right to chose one’s own nationality on an equal basis with others.[14] At present, the Health Requirements breach both of these rights for people with disabilities.
The Government has maintained that the current policy is justifiable because of the importance of reducing excessive costs and demand on state-funded essential services.[15] However, it has failed to take into account that, while individual rights can be constrained for valid purposes, they also must be constrained in the least discriminatory way possible while still enabling the state to fulfil the aforementioned purpose.[16] This is consistent with the prevailing approach to s 5 of the Bill of Rights Act 1990.[17] Individual rights should not be completely disregarded in pursuit of the national interest, only limited so far as necessary.
There is definitely scope for reducing the severity of New Zealand’s Health Requirements while still mitigating costs and demand on Government-funded services – Canada’s policy around Health Requirements demonstrates this well. New Zealand and Canada have very similar policies in that they both will reject permanent residency applicants on the grounds that their medical condition(s) will impose “excessive costs and demands” on Government-funded services.[18]
However, Canada has recently reformulated how they determine the threshold for “excessive costs.” Their previous standard was any amount over the average cost of social services “over a period of five consecutive years.”[19] However, upon review, they realised this created an absurdity: a person whose condition may only cost them slightly more than the average was rejected on the same grounds as a person with a much more costly condition.[20] Instead, the new policy defines “excessive costs” as three times the average cost of healthcare services, reducing the number of persons arbitrarily excluded from attaining permanent residency based on their disability.[21] As of 2019, the cost threshold was $102,585 CAD over 5 years.[22] In comparison, when converted into NZD, Canada’s average healthcare cost per person was much closer to New Zealand’s own cost threshold – just under $41,000 NZD. In comparison, New Zealand’s Health Requirements seem more unreasonable.
Admittedly, it is difficult to compare the policies of the two countries. Canada often goes further to protect individual rights and freedoms because of the Canadian Charter of Rights and Freedoms’ constitutional status.[23] However, this also makes them a helpful example of how individual rights do not have to completely cede to the public interest – there can be balance.
In an ideal world, discrimination against people with disabilities would never be justifiable, but Governments do have to prioritise the interests of its citizens by preserving its healthcare and education systems.[24] However, this can be achieved without effectively barring people with disabilities from immigrating to New Zealand.
The Impact of Discriminatory Policy
The moral and practical pros and cons of the Health Requirements could be debated endlessly, but in having these debates, we must remember to consider the psychological impact of discrimination on disabled people. For as long as immigration policy has valued immigrants based on their financial potential, people with disabilities have been reduced to what they will cost the system.[25] As is made clear in the Health Requirements, people with disabilities are considered a drain on state-provided services, and their ability to meaningfully contribute to the community is irrelevant.[26] The message this sends is simple – people with disabilities are not wanted here.
It is not hard to see how this kind of messaging would negatively impact the sense of self of disabled people. This is most evident in the testimonials of those impacted by these policies. When 15-year-old Bumikka Suhinthan, who has Down’s syndrome, was the only member of the family to have her visa declined, her mother described the policy as “…complete discrimination. I've always told her she isn't any different, but this tears it up.”[27] Activist Juliana Carvalho has openly discussed how hard her battle against deportation under this policy has been on her, and how the way she has been treated because of her disability made her want to “give up.”[28] She recollects how debating this policy with a person who relied on financial arguments brought her to tears, as she demanded that he ”never compare human life to money.”[29] These public statements reflect the private pain of immigrants rejected on the basis of their disability.
The impact of this discourse is not limited to prospective immigrants. Immigration discourse is often characterised as the rights of citizens versus the rights of non-citizens.[30] However, individuals rarely define themselves solely by their nationality. Belonging to communities based on shared qualities, such as having a disability, is also an important part of individual identity.[31] Therefore, when disabled citizens see the discrimination non-citizens face because of their disability, it does not matter that they are not directly impacted – it still sends the message that people with disabilities do not deserve the same respect as their able-bodied peers.[32] This is not an insignificant number of people either. Over 1.1 million New Zealanders have disabilities, which is nearly a quarter of the total population.[33] These policies are supposedly made with the national interest in mind, and yet they are a slap in the face of so many disabled citizens.
Conclusion
For too long, New Zealand has emphasised that they can discriminate on the grounds of health, without meaningfully considering whether they should. INZ’s current Health Requirements blatantly discriminate against people with disabilities. Any challenge to this policy is rebuffed by reference to avoiding “excessive costs,” but this is no longer a satisfactory rebuttal in light of the issues of justification with this policy. These policies should be amended, if not repealed, in order to ensure there is no unnecessary discrimination or harm resulting from these policies. It is unlikely immigration policy will ever be free from discrimination, but with the right amendments it could become more just.
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[1] Immigration Act 1993, s 392(3).
[2] Immigration Act 1993, s 3(1); Matthew Lindauer “Immigration Policy and Identification across Borders” (2017) 12 J Ethics & Soc Phil 280 at 282-283.
[3] Immigration Act 1993, s 22(6)(a)(i).
[4] Immigration New Zealand Operational Manual A4.5.
[5] Immigration New Zealand Operational Manual A4.10.
[6] Immigration New Zealand Operational Manual A4.10.
[7] Douglas MacKay “Immigrant Selection, Health Requirements, and Disability Discrimination” 14 J. Ethics & Soc. Phil 44 (2018) at 48.
[8] New Zealand Government Combined second and third periodic reports submitted by New Zealand under article 35 of the Convention pursuant to the optional reporting procedure, due in 2019 UN Doc CRPD/C/NZL/2-3 (11 October 2019) at [204].
[9] Immigration New Zealand Operational Manual A4.5-A4.5.10.
[10] Immigration New Zealand Operational Manual A4.10.1.
[11] Ministry of Education “Criteria for Ongoing Resourcing Scheme (ORS)” <www.education.govt.nz>.
[12] Bill of Rights Act 1990, s 19.
[13] United Nations Convention on the Rights of Persons with Disabilities 2515 UNTS 3 (opened for signature 30 March 2007, entered into force 3 May 2008), art. 18.
[14] CRPD, above n 13, art. 18.
[15] New Zealand Government, above n X at [208]-[209].
[16] MacKay, above n 7 at 56-58.
[17] R v Hansen [2007] NZSC 7 at [42].
[18] MacKay, above n 7 at 46.
[19] Immigration and Refugee Protection Regulations, SOR/2002-227 (Can), reg 1.
[20] Hon. Ahmed Hussen “Temporary Public Policy Regarding Excessive Demand on Health and Social Services” (1 Jun 2018) Government of Canada <www.canada.ca>.
[21] Hussen, above n 19.
[22] Government of Canada “Medical Inadmissability” <www.canada.ca>.
[23] Canadian Charter of Rights and Freedoms, pt 1 of the Constitution Act 1982, being sch B to the Canada Act 1982 (UK).
[24] MacKay, above n 7, at 63-64.
[25] Ravi Malhotra “The Impact of the Convention on the Rights of Persons with Disabilities on Canadian Jurisprudence: The Case of Leobrera v Canada” (2017) 54 Alta L Rev 637 at 637-638.
[26] Judith Mosoff “Excessive Demand on the Canadian Conscience: Disability, Family, and Immigration” (1998) 26 Man L J 149 at 165-167.
[27] “Irish teen with Down syndrome has final NZ visa appeal dismissed” New Zealand Herald (online ed, Auckland, 27 March 2019).
[28] Fiona Connor and Laura Grigg “Paraplegic woman facing deportation from New Zealand blames ‘a system that discriminates’” (22 January 2020) Newshub <www.newshub.co.nz>.
[29] Julia Carvalho “Petition Update: To be inspiring or not to be? This is the question.” (20 February 2020) Change.org <www.change.org>.
[30] Lindauer, above n 2 at 283.
[31] Lindauer, above n 2 at 285.
[32] Lindauer, above n 2 at 285-287.
[33] “Key findings from the 2013 New Zealand Disability Survey – A4 brochure” (14 June 2014) Statistics New Zealand <www.archive.stats.govt.nz>.