133 Molesworth Street
PO Box 5013
Wellington 6140
New Zealand
T+64 4 496 2000
8 November 2032
Saska Hayes
By email: [FYI request #24403 email]
Ref: H2023032335
Tēnā koe Saska
Response to your request for official information
Thank you for your request under the Official Information Act 1982 (the Act) to Manatū Hauora
(the Ministry of Health) on 11 October 2023 for information regarding the rights of asylum
seekers to access health care. You requested:
“The policy sections outlining what medical services were available to asylum seekers
from 1997-2010.
At the points where the policy has been amendment, advise documents that record why
the change has happened.”
Medical services available to asylum seekers from 1997
The Health and Disability Services Eligibility Direction sets out the eligibility criteria for publicly
funded (free or subsidised) health and disability services in New Zealand. As the term ‘asylum
seekers’ used in your request is not a formal term reflected in the Health and Disability Services
Eligibility Direction, we have interpreted this as persons seeking refugee or protection status as
defined in the Immigration Act 2009.
The former Health and Disability Services Eligibility Direction 1997 was drafted in line with the
Immigration Act 1987. Under section 5(4), it says:
A person shall be eligible for publicly funded services if he or she is in New Zealand at the
time of seeking services and…
(4) Has refugee status in New Zealand or is in the process of applying for such status .
(see https://gazette.govt.nz/notice/id/1997-go5079)
Changes made between 2009 and 2011
The Immigration Act 2009, which came into force on 29 November 2010, included significant
changes to the immigration system and the Health and Disability Service Eligibility Direction was
updated in 2011 as a result (creating the Eligibility Direction 2011). The Immigration Act 2009
expanded on New Zealand’s obligations under the
United Nations Convention Relating to the
Status of Refugees (the Refugee Convention) and the
Protocol Relating to the Status of
Refugees, and codified certain obligations under:
•
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (United Nations Convention against Torture (UNCAT)), and
• the International Covenant on Civil and Political Rights (ICCPR).
The expansion of New Zealand’s obligations under the UNCAT and ICCPR resulted in the
introduction of protected person status. This means that a person who does not meet the
definition of a refugee under the Refugee Convention may be granted protection status under
the UNCAT or ICCPR. The Immigration and Protection Tribunal (IPT) was also established
under the Immigration Act 2009 to consider appeals against decisions made by Immigration
New Zealand and to consider humanitarian appeals.
The Eligibility Direction 2011 expanded eligibility to include those persons seeking protection
status in New Zealand or who had been granted protection status under section B11(a), (b), (c):
A person is eligible to receive services funded under the Act if the person is—
(a) recognised as a protected person under the Immigration Act 2009; or
(b) in the process of having a claim for recognition as a protected person determined by a
refugee and protection officer; or
(c) in the process of having an appeal for recognition as a protected person determined by
the Immigration and Protection Tribunal.
The Eligibility Direction 2011 under section B10(c) also expanded eligibility to include persons
waiting for the outcome of an appeal to the IPT against an Immigration New Zealand decision
not to recognise their refugee claim:
A person is eligible to receive services funded under the Act if the person is—
(a) recognised as a refugee under the Immigration Act 2009; or
(b) in the process of having a claim for recognition as a refugee determined by a refugee
and protection officer; or
(c) in the process of having an appeal for recognition as a refugee determined by the
Immigration and Protection Tribunal.
Please refer to the Te Whatu Ora website to view the Eligibility Direction 2011 and for further
information:
www.tewhatuora.govt.nz/our-health-system/eligibility-for-publicly-funded-health-
services/eligibility-explained/. Relevant policy documents reflecting the changes to the Eligibility Direction One document titled
Review of Eligibility Criteria - Policy Issues for Decision has been identified
within scope of your request and is appended to this letter. This document was provided to the
former Minister of Health, Hon Tony Ryall in October 2010. Some information contained in this
document is out of scope of your request. As such an excerpt of this document has been taken
in accordance with section 16(1)(e) of the Act. Some information has been withheld under
section 9(2)(g)(i) of the Act to maintain the effective conduct of public affairs through the free
and frank expression of opinions by or between or to Ministers of the Crown.
Where information is withheld under section 9 of the Act, I have considered the countervailing
public interest in releasing that information, and consider that it does not outweigh the need to
withhold it at this time.
I trust this information fulfils your request. If you wish to discuss any aspect of your request with
us, including this decision, please feel free to contact the OIA Services Team on:
[email address].
Under section 28(3) of the Act, you have the right to ask the Ombudsman to review any
decisions made under this request. The Ombudsman may be contacted by email at:
[email address] or by calling 0800 802 602.
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Please note that this response, with your personal details removed, may be published on the
Manatū Hauora website at:
www.health.govt.nz/about-ministry/information-releases/responses-
official-information-act-requests. Nāku noa, nā
Steve Waldegrave
Associate Deputy Director General
Strategy, Policy and Legislation | Te Pou Rautaki
Page 3 of 3
Excerpt from: HR20101403 Review of Eligibility Criteria - Policy Issues
for Decision
Executive summary
i.
In July 2010, you agreed to a review of the eligibility criteria for publicly-funded health
and disability services with a narrow scope and to coincide with the implementation of the
Immigration Act 2009 (‘the Act’). The Eligibility Direction, which sets out the criteria and is
approved by you, needs to be updated to reflect the changes that the Act will bring in after
November 2010. Decisions are needed on the eligibility for new types of visa and to align the
criteria with immigration policy.
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The Ministry recommends that you:
f )
Agree to give effect to New Zealand’s international health service commitments by
making provision for protected persons and those identified by Police as ‘suspected victims of
human trafficking’
g)
Agree that other necessary minor technical and drafting amendments can be made to
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the eligibility criteria (eg, updating references to legislation).
h)
Agree that once the Ministry has drafted a Direction that reflects your decisions on the
above policy issues and the other necessary minor technical and drafting changes, we can
consult with DHBs on this draft Direction.
Advice
Background
1.
In July 2010 (HR 20100866) you agreed that the eligibility criteria for publicly-funded
health and disability services needed to be updated to reflect the changes brought in by the
Immigration Act 2009. You decided that a review should be undertaken with a narrow focus that
retains the key eligibility policy settings.
2. … There have also been changes to New Zealand’s international commitments that need to
be accounted for.
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3.
This paper seeks your views on the proposed solutions to all the significant policy issues
that have emerged from the review (Appendix 1 summarises the proposals in a table form)….
A workshop was also held with DHB representatives to draw on their practical experience and
expertise in implementing the criteria and to gather feedback on the proposals. The workshop
participants largely endorsed the Ministry approach and suggested some further refinements.
4.
The proposals put forward are consistent with the agreed scope and seek to confirm and
consolidate existing policies, current practices within DHBs and documentation. They will not
create any significant new classes of eligible or ineligible people. Some other minor technical
and drafting amendments also need to be made to the Eligibility Direction (the Direction), which
sets out the eligibility criteria. It should be noted that while the Direction is made to DHBs, the
principles of eligibility are applied across the sector and incorporated in a range of contracts for
services funded through the Ministry.
5.
Where possible, the proposals have been costed, but the financial implications were
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often difficult to isolate and accurately quantify. The savings and costs seem to largely balance
each other out, making the whole package relatively cost neutral.
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6.
There are also wider benefits to reviewing the eligibility criteria. s 9(2)(g)(i)
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Immigration issues
7.
The Immigration Act 2009 (the Act) will bring in significant changes to immigration
processes, including the nature of visas and permits, as well as some policy adjustments. On 30
November 2010, when most of the key elements of the legislation come into force, all current
permits will be deemed visas. The new Direction will need to accommodate this new visa-only
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regime. In most cases, this will largely be a question of language rather than substance. There
are, however, new types of visa and some adjustments to conditions for existing permits that
need to be considered.
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Interim Visa
8.
The legislation will introduce a new Interim Visa that is designed to fill temporary gaps
between other visas. These gaps normally occur due to administrative delays. A decision is
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needed on the eligibility status of people on these new temporary visas.
9.
Consistent with the goal of making the criteria as clear as possible, it is suggested that
eligibility for the Interim Visas should be the same as for the previous visa held (ie, if the person
was eligible, that will continue, and if they were not, they will not be under the Interim Visa, even
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if their next visa might give them entitlement).
10.
This does represent a slight change in policy. At present, services would be provided
during the gaps, but the patient would be billed. If the permit is granted and confers eligibility,
then the bill is rescinded. The eligibility is therefore effectively determined retrospectively. The
new approach is fair and allows eligibility to be assessed at the time services are sought. In
some cases people will not be covered when they were previously, and in others they will be.
Overall, the financial implication are expected to be negligible.
International
34.
NZ has ratified the Protocol to Prevent, Suppress and Punish Trafficking in Persons,
supplementing the United Nations Convention against Transnational Organized Crime. This
requires state parties, among other things, to provide “medical, psychological and material
assistance” (Article 3). A National Plan of Action was also agreed by Cabinet in June 2009 that
stated that provision should be made for health services for trafficked persons. Recognising
them in the Direction should ensure they are able to access appropriate health services, in
particular primary, mental and sexual health services.
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35.
The government is also now recognising a new class of person given protection under
the Convention Against Torture (CAT) and the International Covenant on Civil and Political
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Rights (ICCPR). The thresholds for establishing the need for protection are lower than those for
asylum seekers, but DoL’s approach is to treat people protected under these Conventions
broadly in the same way as refugees.
36.
To date there have been no prosecutions of people trafficking in NZ, so the numbers of
victims of trafficking are likely to be very small. DoL is expecting some applications for
protection, at least at first from unsuccessful refugee claimants, but for few to meet the criteria.
It is recommended that the Direction include provision for protected persons and those identified
by Police as ‘suspected victims of human trafficking’ in the same way as it presently does for
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asylum-seekers. At a bare minimum, there would be costs for initial health screening and then
ongoing health needs. For ten arrivals per year, the cost would not be less than $50,000, but
would actually be much more once their special health and community based resettlement
needs had been met.
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Next steps
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38. A number of steps must be followed before a new Direction comes into effect. Once we
have your decisions on these policy issues, the new Direction can be drafted. This will be the
basis for the consultation that is required with all DHBs under the Crown Entities Act 2004. We
are not expecting any surprises, as we have already canvassed our approaches with them. The
views of the National Health Board
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may wish to seek advice from your Cabinet colleagues on the new Direction, but you formally
sign it. The Direction will then be gazetted.
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