Report to UN: New Zealand’s immigration system discriminates on disability grounds

New Zealand’s immigration agency, Immigration NZ, told the UN it does not record whether its residency applications are declined on health and disability grounds. To address this information gap, disability rights organization Fusi Alofa Association Tuvalu (Fusi Alofa), Tuvalu Climate Action Network (TuCAN) and the International Center for Advocates Against Discrimination (ICAAD) submitted a Shadow Report to the Committee.

NGOs state that New Zealand is failing to meet its international obligations under article 16 of the Convention on the Rights of Persons with Disabilities (CRPD), by discriminating on the basis of disability in immigration proceedings in the Pacific Access Category. The resident visa scheme is offered to people from Samoa, Fiji, Kiribati, Tuvalu and Tonga, including their partners and dependent children, to settle in New Zealand each year.

“We know that New Zealand distinguishes between health and disability because when reviewing an application, it looks at the threat to public health, costs to health services, and the ability to work or study based on the applicant’s visa. These factors, combined with limited oversight and broad discretion, create a pervasive system of discrimination,” said Erin Thomas, Policy and Research Coordinator at ICAAD.

The Report points to examples of discretionary patterns by Immigration NZ. In one case, a family, including a physically disabled child, applied for a visa under the Pacific Access Category. The process was delayed until the parents removed the disabled son from the application. The rest of the family were granted visas shortly after, while the son remains in Tuvalu.

There are numerous cases where applying groups removed applicants with disabilities and were subsequently granted visas. Even reapplying can be prohibitive, costing more than $1000 dollars for the process each time. 

“If the Pacific Access Category is not meant for people with disabilities, the Government should say so. There is no reference to disability being a restricting factor, yet that is the pattern we are seeing. This is discrimination,” said Taupaka Uatea, Office Manager at Fusi Alofa.

To protect the rights of disabled persons, NGOs have asked the Committee to consider the below recommendations in its final report on New Zealand:

● Repeal parts of the Immigration Act 2009 which prohibit immigration-related complaints
to the Human Rights Commission; and provide a pathway for filing discrimination complaints;
● Remove sections of the Acceptable Standard of Health (ASH) policy that reference disability as imposing prohibitive costs;
● Remove a section of the ASH medical waiver policy so that, should disability remain on the list of cost-prohibitive medical conditions, it at least be removed from the list of excluded circumstances for medical waivers; and

● Reduce or eliminate application fees under the Pacific Access Category, given that the scheme falls under the “international/ humanitarian visa stream”;
● Track reasons for declining residency applications specifically under health and disability grounds.

Following the Committee’s review, a final report will be issued with recommendations for New Zealand pertaining to its compliance with the Convention.

Richard Gorkrun, Network Director from TuCAN, said: “We hope that New Zealand takes this process as an opportunity to improve the way it reviews immigration applications. Immigration from the Pacific Access Category is only going to increase in the face of the climate crisis. The government can take concrete steps to ensure that individuals hoping to become residents in this country are treated fairly, and with dignity.”

People with disabilities are particularly vulnerable to climate change impacts. NGOs urge New Zealand to consider that fair and formal entry of disabled persons to the country would be an initial step towards migration as an adaptation option.

“Some have voiced that the Pacific Access Category is a pathway for climate migration to New Zealand. If that is so, then it is even more important to ensure there is no discrimination based on disability,” said Taupaka.

“It is deeply concerning that people with disabilities are being excluded from this scheme, as they will have limited options if their home country becomes unlivable in the coming decades. New Zealand can and should be doing more to protect vulnerable populations.”

Notes:
● Report Recommendations:
1. Repeal Section 392 para. (2) and (3) of the Immigration Act 2009. Para. 2 prohibits immigration-related complaints to the Human Rights Commission which limits national avenues for redress related to discrimination. Para. 3 provides an pathway for explicit discrimination, stating “immigration matters inherently involve different treatment on the basis of personal characteristics.”
2. Remove sections of the Acceptable Standard of Health (ASH) policy (A4.10.1) relating to disability. New Zealand has stated their distinction between health and disability in the state party report, yet immigration policy still explicitly discriminates against persons with disabilities. We are encouraged by the removal of HIV infection from the list of medical conditions imposing prohibitive costs, and we urge New Zealand to similarly remove disability related impairment.
3. Remove the carve out for “physical, intellectual, cognitive and/or sensory incapacity that requires full time care, including care in the community…” in the ASH medical waiver policy (A4.60). Should disability remain on the list of medical conditions deemed to impose too significant a cost, it should be removed from the list of excluded circumstances for medical waivers (section A, iii).
4. Reduce or eliminate application fees under the Pacific Access Category. Given that the scheme falls under the “international/ humanitarian visa stream”, the application fee should either be greatly reduced or eliminated in order to better support applicants planning to settle in New Zealand.

About Fusi Alofa Association Tuvalu:
Fusi Alofa Association Tuvalu (Fusi Alofa) is the only umbrella Disabled Person’s Organization in Tuvalu. Fusi Alofa was established in May 2009 and was finally registered as a non-government organisation (NGO) in June 2012. Fusi Alofa strives to be the leading advocacy organisation on disability related issues in Tuvalu. Fusi Alofa also values its partnerships working on disability issues like the Tuvalu Red Cross Society, Department of Community Affairs (Social Welfare), Secretariat of the Pacific Community/Regional Rights Resource Team (SPC/RRRT), etc.
About TuCAN:
Tuvalu Climate Action Network (TuCAN) was set up in response to the urgent need for a global commitment to reduce warming to well below dangerous levels and the equally urgent need to raise awareness on, adapt to climate change and implement clean energy in Tuvalu. It is a nationwide network that will be responsible for being the voice of all non
government organisations in Tuvalu on climate change, working to coordinate and implement climate change activities and issues that are of direct relevance to non government organisations.

About ICAAD:
ICAAD is a human rights advocacy center working at the intersection of legal innovation and human-centered design to create evidence-based programs with multidisciplinary partners to combat structural discrimination. They see the law and design justice as crucial lenses in identifying and changing discriminatory systems. Guided by international
human rights law, we locate and approach human rights violations by identifying pattern and practices of discrimination within various government and cultural systems.