Medical Waivers NZ

In order to secure most visas for New Zealand an applicant must be of an ‘acceptable
standard of health’. It can be very difficult to know just what that means. How healthy is
good enough?

Working through that is not helped when the standard of health required for entry varies
across different visa types. For example, the standard of health required to get a temporary
five year Accredited Employer Work Visa is lower than it is for those seeking a Resident Visa.
Given that most skilled migrants seeking a Resident Visa need a work Visa in order to buy
enough time to work in NZ and qualify for residency ‘points’ it is critical to understand the
difference.

The Immigration department rulebook does have a list of conditions that would “not
normally” allow someone to be granted a Visa. These two words provide an opportunity to
argue the merits but it’s not an easy process.

Acceptable Health Standards for Pre-existing Conditions:

1. Cost – what is the ‘likely’ cost to provide the medical care/medicines/support for the
   duration of the intended stay?
2. Resources – are the resources required to provide the care freely available including
   medical personnel to offer it or is there a shortage? This can be facilities or medicines
   or specialists or all three;
3. Is the person a danger to themselves or the public e.g. communicable diseases or
   mental health issues

Note the use of the word likely. You do not have to currently need care or medication immediately
to be refused entry based on health – It can be based on the potential of future cost (obese
people with hypertension for example represent a clear future potential cardiac cost).
The duration of your intended stay is a crucial part of the assessment process.
Given those coming on Work Visas are coming for a finite period, a health
condition is less likely to lead to a decision to decline on health grounds because the
(potential or actual) costs can be quantified for the duration of the Visa.

The stakes however are far higher for residency because a residency visa allows an
indefinite period of stay.

Acceptable Health Standards for New Zealand Resident Visas

When applying for a Resident Visa the baseline is whether the ‘likely’ treatment, medication
and/or care will exceed $81,000. If the condition is chronic, that means over the rest of the
applicant’s life which might be a very long time.

If a person files a Resident Visa application but the immigration department medical team advises that the ‘likely’ cost of their treatment or possible treatment will exceed that $81,000, they would normally receive a letter telling them they are not of an acceptable standard of health and they have 14 days to satisfy the department otherwise.

That can be extremely tricky because the departmental doctors are firmly wedded to a
publicly funded New Zealand health system that is groaning under the pressure of an aging
population and underinvestment. In my 30-plus years of practice their inclination is to deem
someone to not be of an acceptable standard of health first and see how the applicant
reacts.

If it is determined the applicant does not meet the grade they get the option of arguing a
medical waiver but only for a resident visa, this is not an option at temporary visa stage. A
medical waiver is a process whereby an applicant or their legal representative presents
essentially a cost/benefit analysis – does New Zealand gain more letting this person stay
than it might lose if they are forced to go (or never come in the first place)?
Importantly, it is not simply a box ticking exercise and is subjective.

The departmental manual does have some guidelines and they will look at things like family
support and connections, skills, funds they might have with them and so on. The
Department will then accept or reject those arguments and the Resident Visa will be
approved or declined. A declined application can be appealed to the Immigration and Protection Tribunal

One cannot indemnify the New Zealand government if you have a pre-existing condition or
if you get something while you’re in New Zealand on a temporary Visa while are you waiting
for a Resident Visa to come through. We are often told by people they are happy to buy
insurance or they promise not to go into the public system if they need an operation or care. That is not possible at the current time.

Medical Waiver Case Study

Recently we took on a client who had serious mental health issues including anxiety and
depression. The individual checked herself into a ‘hospital’ in South Africa. She needed a
circuit breaker from the causes of her stress, anxiety and depression with the support of her
mental health professionals.

Suffering anxiety and depression is not in and of itself a reason to decline an application on
mental health grounds but the red flags go up when someone has been ‘hospitalised’.

In the case of our client who was in New Zealand on a Work Visa (she came knowing the
risks), we were able to demonstrate that she had self-admitted, had never been any danger
to herself or others, continued with her work in South Africa and since being in New Zealand
her condition was stable and she was holding down full time employment. And she wasn’t in a psychiatric hospital or ward. Proving all of this was critical and getting letters from GPs, mental health specialists, employers and so on was crucial

The individual context, causes and outcomes were everything. We got the medical waiver.

Many years ago I successfully argued a medical waiver for a senior nurse (midwife) who was
HIV positive. The cost of her anti-retrovirals were publicly available so we could work out the
‘likely’ cost fairly easily. What was not so easy to quantify was the benefit to NZ. I won’t go into the details here but I managed to satisfy the immigration department after three years
of arguing back and forth, that New Zealand gained more than it lost if she was allowed to
remain in New Zealand. We won.

It was possibly the toughest argument I have ever had but I strongly believed in the
applicant and critically I was able to provide evidence of the dollar benefit to New Zealand if
she stayed.

People often underestimate how important health is in securing visas. They forget that
different health standards apply to different types of visas. It can be very dangerous to
assume it won’t be an issue even if it doesn’t appear to be an issue when you make the
decision to apply for a visa.