Visa Medicals and the Martyn Payne story

Just saw the news report on Martyn Payne from the UK who was deported on Easter Saturday because of his heart condition.

He set up a garage in a small Northland town under a Long Term Business Visa (LTBV) 6 years ago.  The business served the community well.  But when he applied for Residence two years later he was found to have a heart irregularity.  Immigration decided that the cost of potential future health care was too great. 

A great deal is made in the media reports about why Mr Payne was allowed to get the LTBV in the first place when he was likely to be declined Residence later.  What no-one in the news reports bothered to explain is that what is acceptable health for a temporary visa (in this case a Work Visa) is different to what is acceptable for Residence.

Heart disease is on a list of medical conditions called Appendix 10.  Anyone applying for Residence whose health pops up on Appendix 10 is automatically seen by Immigration as a risk of significant cost to the health system.  This is so even if they never have to go to hospital, or if they offer to get private health insurance.  If a person is here for the rest of their life, then as they get older the risk usually increases that they will need medical help.  The problem is that under New Zealand law, all Residents and Citizens are entitled to public health care for necessary surgery or treatment.  The logic goes that it is not good to create a “second class” set of Residents who have to pay their own way – for health, education and so on.

Appendix 10 is not used for temporary visa applications.  Instead, the question is whether people are likely to pose a significant cost “during the period of their intended stay.”  Their visa may be for one, two or five years at most.  When Mr Payne applied for his LTBV he could show that he was coping well with surgery he’d had in the UK, and presumably this meant that for the next few years the condition would be well-managed.

So why he was allowed to spend his money setting up the business in New Zealand when there was a risk that he could fall foul of Appendix 10?  After all, his heart condition was present when he applied for the LTBV.  Business Visa policy is designed to allow people to apply for Residence later.  This means Immigration could have foreseen that this would happen right from the start.

I am reluctant to suggest that Residence medical policy be applied to temporary LTBV applications.  Yet this is the inevitable conclusion.  This type of Work Visa is different from those based on a job offer, where nobody should expect to get Residence at the end of the day just because they get a Work Visa.  (Another exception is Work to Residence policy for skill shortages and so on.)  Using the language of contract law, Mr Payne was induced to invest in a New Zealand business by an implied representation that Immigration thought that he would be fit for Residence.  I am not saying that this is what Immigration intended, but it is reasonable to look at the system from the end-user’s point of view.

This sort of incident does no good for New Zealand’s reputation as a migration destination.  As one person commented, “Everytime when I listen to such stories I feel that NZ is raising its fences higher and higher, meanwhile it does not know it can be locked in the fences.”

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About Simon Laurent, Lawyer

Principal of LaurentLaw Barristers & Solicitors. NZ immigration law specialist.
This entry was posted in Immigration Visas and tagged , , , , . Bookmark the permalink.

3 Responses to Visa Medicals and the Martyn Payne story

  1. Jody Louw says:

    Thank you for your clear explanation. I feel that many people are mislead. They assume that a work visa will lead to Residence and do not look further than getting a visa to begin with. People should definitely be warned about this before they move here on a work visa.

    My question is: Is the system any different in Australia?

    I look forward to your reponse.

    Like

  2. Pingback: Immigration Medical Waivers again | Laurent Law Blog

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