Visas & Advice Detail
Coping with the health assessments
Mark Williams of Lane Neave Immigration Lawyers explains the steps migrants should take in relation to the medical assessments required by Immigration New Zealand.
In recent weeks there have been a number of publications releasing articles on the apparent failure or issues that some individuals have had qualifying for New Zealand residence due to the required standard of health imposed by Immigration New Zealand (INZ). In particular, individuals have encountered problems where they are considered under New Zealand immigration policy to have an unacceptable Body Mass Index (BMI). In one article published recently, advice was provided that the individual was required to undergo a crash diet to lose weight and therefore reduce their BMI in order for INZ to confirm that they met the required standard of health.
The foundation for the position of INZ to strictly enforce the accepted standard of health is the underlying concern that individuals with high BMI could become a significant drain on New Zealand's health resources and therefore their value as a migrant would be limited. It is fundamentally important for any individual, either intending to apply for New Zealand residence or currently moving through the immigration process, who may be faced with questions from immigration regarding their health to note that there is actually quite strict policy in place regarding the circumstances in which INZ can decline an applicant for failing the required health standard.
A simple point to take from this article is that, if an individual submits an immigration application and they are questioned in terms of their state of health, at the very least, the opinion of the medical assessor used by INZ to reach that conclusion should certainly be reviewed. If a negative report is received from a medical assessor, a second medical opinion from a doctor (preferably in New Zealand) should be obtained, and further, the individual should seek the assistance of an appropriate representative who has had experience in dealing with medical issues in immigration applications.
It is important to note the actual wording of the policy where an individual is deemed to have an unacceptable standard of health under residence policy. This is provided under section A4.10 (b) of the INZ Operational Manual (Manual) which provides as follows:
"Applicants for residence are considered to have an acceptable standard of health if they are:
Unlikely to be a danger to public health; and
Unlikely to impose significant costs or demands on New Zealand's health services or special education services; and
(Unless the applicant is sponsored for residence by a person who holds refugee status in New Zealand) able to undertake the work on the basis of which they are applying for a visa or permit, or which is a requirement for the issue or grant of the visa or permit."
In terms of quantifying the definition of significant costs, section A4.10.1 of the Manual applies which provides the following:
"The requirement that an applicant for residence must be unlikely to impose significant costs on New Zealand's health services is not met if, in the opinion of an Immigration New Zealand medical assessor, there is a relatively high probability that the applicant's medical condition or group of conditions will require health services costing in excess of NZ$25,000."
The key to contesting this part of immigration policy (in relation to BMI matters), is that there must be a relatively high probability that the applicant's medical condition or group of conditions will require health services costing in excess of NZ$25,000. It is important, therefore, that any opinion from a medical assessor confirming that the individual will likely pose a significant cost to New Zealand's health services must be based on sound evidential foundation. Any report that is received from a medical assessor advising that the individual does not meet New Zealand's health requirements without actually quantifying the reasons why should in all instances be contested. The medical assessor must be certain in their opinion that there is in fact a relatively high probability based on the individual's current health that they will require health services costing in excess of NZ$25,000. An assumption, or conclusion based on the civil burden of 'more likely than not' is not enough. When an opinion is provided by the medical assessor and the applicant contests that opinion, the application is referred to a second medical assessor who will take into consideration both reports and make a final determination. If a final determination is made that the individual does not meet the applicable health requirement, then in most instances submissions can be tendered to INZ to request that the medical requirement be waived.
Section A4.70 of the Manual sets out the applicable policy in relation to determining whether the circumstances of the applicant are compelling enough to justify and allow the individual's entry into New Zealand by waiving the required health standard. The factors that immigration officers will take into consideration when making their decision as to whether or not to grant a medical waiver include, but are not limited to, the following:
The objectives of health requirements and the objectives of the policy or category under which the application has been made;
The degree to which the applicant would impose significant costs and/or demands on New Zealand's health or education services;
Whether the applicant has any immediate family lawfully and permanently resident in New Zealand and in the circumstances and duration of that residence;
Whether the applicant's potential contribution to New Zealand will be significant; and
The length of intended stay in New Zealand.
In most instances, compelling submissions can be made to INZ in the event that an individual (or the partner of an individual) applying for New Zealand residence under the Skilled Migrant Category fails to meet the required standard of health. The unemployment rate in New Zealand is approximately 3.4 per cent and the country is in chronic need of skilled workers. In an environment such as this, sound submissions can be made directly to INZ to provide foundation that the actual benefit of the individual travelling to New Zealand and undertaking employment in a skilled role far outweighs the potential cost to the health system. In the case of the individual making a decision to lose weight to come within the required standard of health, it is not certain as to whether or not this individual actually received appropriate immigration advice and/or contested the opinion of a medical assessor and/or filed a medical waiver submission.
It is curious to note that in a number of cases where individuals have applied without assistance there appears to be a perception that the initial opinion of the medical assessor and INZ is final. The writer has obtained numerous medical reports on behalf of clients that have been at extreme odds to positions adopted by some medical assessors.
If you are considering emigrating to New Zealand and have concerns regarding your health then one suggestion would be for you to complete a Medical and X-Ray Certificate and have that Certificate reviewed by an immigration specialist and/or an appropriate doctor. In most instances, medical issues can be dealt with adequately before an individual applies, or in the alternative if there is a medical issue that will need to be addressed appropriate advice can be provided to the individual in terms of eligibility before bridges are burnt.
For further information:
Kiwi Emigration