On Tuesday I commented on the ZB Newstalk Larry Williams show about the decline of Dimitri Leemans’ application for Residence.  This happened because Prof.. Leemans’ stepson Peter is autistic.  Immigration concluded that Peter needed “continuous, structured residential care.”  It followed a report on the story in the NZ Herald.

Prof Leemans is recognised as an authority in mathematics.  He was awarded a Marsden Grant of NZ$580,000 and a research award, and came to work at Auckland University 4 years ago with his family including Peter.  They are now going home after being told, as he puts it, “you are not welcome here because you have a disabled child.”

Looks pretty mean, right?  Well, yes and no.

Medical Assessments

Whenever someone applies for Residence, Immigration must work out if they have an “acceptable standard of health” (ASH).  If they have serious conditions like heart disease, kidney failure, or hepatitis then they will be found to be “not ASH” because they will in the future use up a lot of New Zealand’s health resources.  Health funding is always an issue – see for instance the Government’s direction to Health Boards to cut their budgets yet again.

Most of the time people can then ask for a Medical Waiver.  That is, despite the fact that they will be a burden on the NZ taxpayer, there are strong reasons why they should still get Residence.   In Prof Leemans’ case, it’s hard to imagine many people more likely to make a significant contribution to New Zealand by staying as a Resident.  “Significant contribution” is one of the tests which Immigration applies to Medical Waivers.

But in some cases Immigration is not allowed to offer the Medical Waiver.  For instance, in Peter’s case his own medical specialist apparently confirmed that the needed ongoing and continuous residential care.  Even if they wanted to, Immigration New Zealand had no discretion to consider a Medical Waiver for him.  This is because Immigration officers are required by law to apply the Policy.

Peter was part of the family’s application for Residence.  If just one person in the application is not-ASH and there is no Medical Waiver, then everyone is declined.

What Should the Leemans Have Done?

The family did not appeal against this decision.  They were understandably hurt that although Prof. Leemans had been encouraged to come to teach here – was given a lot of money to do so – they failed the Residence hurdle.  So they are going to go back to Europe in June.

But they should have appealed.  The Immigration & Protection Tribunal which considers these appeals is not bound to follow the Policy in the same way as Immigration.  It is able to look at whether there are “special circumstances” which would justify making an exception.  From my experience of appeals, I think that this was a perfect case for them to do this.  What makes for special circumstances is not clearly defined – but you know it when you see it.

The Leemans family can’t appeal now.  Their case was decided in September 2015.  They had 7 weeks in which to appeal, and the Immigration Act 2009 does not allow the IPT to accept appeals after that deadline.  If they had appealed, it is quite possible the family would have Residence by now, or be close to it.

It’s all a sad waste brought about by misunderstandings.  This is one of many examples where getting the right advice could have changed people’s lives – and where failing to get advice has meant that everybody loses.

As I said above, Immigration had no choice in the matter once they were confronted with the evidence supplied by Peter’s own doctor.  Noises have been made about breaches of human rights treaties and so on, but this ignores the simple fact that the visa system did offer a remedy.  If someone fails to use it, or ask someone to explain what they can do, then that is not Immigration’s fault.

Time for Change?

Now, you could also object that the Policy is broken – that everyone should have the chance to get a Medical Waiver assessed.  I happen to agree, because I am currently running an IPT appeal about the same problem.

This means a change of Policy is needed.  That’s not so simple however, especially when Immigration faces competing demands.  On one side they have migrants of all shapes and sizes who want to get in, and some of them could be very valuable indeed, like Prof. Leemans.  On the other they have awful hospital waiting lists, shortages of hospital staff and specialists, never enough money to go around.

I still think it’s time to have that conversation, however.  Maybe I should do something about it.