Sharing our stories
Ever since the Acceptable Standard of Health (ASH) requirements became so strict in the early 2000s, there have been various efforts to advocate against them, which the Government have largely ignored. Since at least 2016, many of us who’ve been affected have started sharing our stories in the media.
Breach of Rights
ASH requires migrants with disabilities, health conditions and health needs to prove ourselves over and above what other migrants have to, in order to supposedly outweigh the costs of our conditions. It goes against the aim of creating a non-disabling society in the NZ Disability Strategy 2016-26.
New Zealand has also signed up to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). Article 5 of the UNCRPD says that countries need to prevent disability discrimination. That’s not happening in the case of ASH.
Article 18 of the UNCRPD says, among other things, that disabled people have the right “to liberty [freedom] of movement, to freedom to choose their residence and to a nationality, on an equal basis with others”. It specifies that this includes the right to change nationality, to not miss out on nationality because of disability, and to access immigration processes needed for the right to liberty of movement. It also clarifies that children should have the right to have a nationality when they are born.
ASH goes against all these rights.
In 2021, NZ’s progress against the UNCRPD is being internationally reviewed again. MAASHA took this opportunity to write a report about how the ASH requirements breach disabled migrants’ and refugees’ rights, rights and what their impacts are.
Government is questioned
In 2018, the international committee monitoring whether countries are upholding disabled people’s rights under the Convention asked the Government about what steps it was taking or planning in order to reduce disability-related migrant discrimination. When the Government replied, they claimed that the migration rules were appropriate under the UNCRPD, even though they clearly go against the rights just described.
In 2020, New Zealand’s CRPD Independent Monitoring Mechanism, consisting of the Disabled People’s Organisations’ (DPO) Coalition, the Ombudsman, and the New Zealand Human Rights Commission, made strong migration policy recommendations to the Government. The recommendations covered making sure disabled people don’t experience more barriers than others when applying to enter New Zealand, and working with disabled people to create immigration rules which line up with the UNCRPD and Disability Strategy.
Petition and progress
In 2019, Juliana Carvalho, a disabled migrant who faced a 7-year-long battle to stay in the country, started a petition. She was campaigning both against her own deportation but also for an end to ASH, so that other migrants wouldn’t keep experiencing the discrimination and injustice of these requirements.
In 2021, Juliana delivered the petition. It had over 34,000 signatures.
In responding to Juliana’s petition, both the Government’s own Office for Disability Issues, and the Education and Workforce Select Committee, recommended a strengths-based, rather than deficit-based, approach be taken with regard to the acceptable Standard of Health. Notably, Select committees are made up of MPs from different parties across Parliament. This recommendation represented agreement from MPs with a range of political views.
Specifically, the Select Committee recommended “that the acceptable standard of health is reviewed so that the health requirements will be aligned to a strengths-based approach for disabilities and only screen for the most serious health conditions”. While the second part of this recommendation would continue to permit some health, and possibly disability, discrimination, on the whole the recommendation represented significant progress.
However, the Government don’t have to follow recommendations made by Select committee’s.
Ableist Government response
We’re extremely disappointed that when the Government made its own response to the petition, it hasn’t indicated any ASH changes towards a more strengths-based approach at all.
“The Government does not recommend reviewing the Acceptable Standard of Health”.
The Government’s response is mostly a continuation of the status quo or what we have now. Those with disabilities, health conditions or health needs will still be forced to prove we’re worth more than the price tag imposed on us. That’s discrimination.
There will be a limited review of the $41,000 cost threshold (the cost after which people are generally considered too expensive, under the current rules). The list of conditions automatically considered to be too expensive or cause too much demand to health services might also get some changes as a result.
We, MAASHA, believe the best thing the Government can do is immediately get rid of the ASH requirements and that any review undertaken should be done transparently and with a view to doing so. A review should also take the opportunity to identify, and make all needed changes, to end disability and health migrant and refugee discrimination. This would include ensuring the review involves those impacted by ASH, as well as assessing the extent and scope of ASH impacts.
We’re also pushing for the Government to grant all those impacted by ASH a visa in the meantime while the review is going on.
As well as that, we’re calling for ASH to never be imposed on any refugees from now on, regardless of which resettlement pathway they come to New Zealand on.
Find our full response to the Minister of Immigration and colleagues here.
Human rights protection for migrants
Migrants don’t have equal access to human rights protections when it comes to immigration decisions.
Specifically, Section 392(2) of the Immigration Act 2009 prohibits migrants from bringing human rights complaints under the Human Rights Act regarding decisions made on the basis of the Immigration Act or associated regulations. This means the law basically says disability discrimination isn’t usually okay, but when it comes to migration, it’s fine.
Green Party MP Ricardo Menéndez March has drafted a Private Member’s Bill which would rectify this. Significantly, it would also repeal Section 392(3), removing the provision stating that “immigration matters inherently involve different treatment on the basis of personal characteristics”.
If this Bill becomes law, our understanding is that the ASH instructions will not legally be able to exist any more. However, the Government has thus far not shown support for this Bill.
MAASHA will continue to campaign for an end to disability and health-based discrimination, including by ending the ASH requirements and the laws which enable them.
Win for those with HIV
In October, 2021, the Government removed HIV from the list of blanket ban conditions. This was a significant win though unfortunately HIV remains on the much longer list of disabilities and health conditions which Immigration NZ considers prejudicial.
For as long as the ASH requirements continue to exist, disability and health discrimination against migrants continues. We oppose such discrimination on principle and thus advocate for the Government to #EndASHNow by immediately abolishing the ASH requirements.