Citizenship Applicants With Australian Partners May Not Be Required To Satisfy General Residency Requirements

The contents of this article are correct as at 2 February 2016.

It may come as a surprise to some permanent residents that they are not required to satisfy the usual residency requirements for grant of Australian citizenship. For permanent residents with Australian spouses or de facto partners the Australian Citizenship Act 2007 (“the Act”) allows the Minister to make a concession when assessing a person’s residency in Australia for the purposes of an Australian citizenship application.

By way of background, the general residency requirement is:

The applicant has spent at least four years in Australia immediately before making an application for citizenship, and has been absent from Australia for no more than 12 months during that period;

AND

The applicant has spent at least 12 months in Australia as a permanent resident, immediately before making an application for citizenship, and has been absent from Australia for no more than 90 days during that period.

If the applicant cannot satisfy the general residency requirement, then the application will be refused unless special circumstances apply. There are a number of instances in which the Minister can waive the general residency requirements, including where the applicant can:

Satisfy the special residence requirements;
Satisfy the Defence service requirements;
Satisfy the Minister that they would suffer significant hardship, if a period when the person was unlawful was discounted when assessing their ability to meet the general residency requirements; or
Show that they were the spouse or de facto partner of an Australian citizen, during a period of absence from Australia, which would otherwise prevent them from satisfying the general residency requirement.

The concession for spouses and de facto partners of Australian citizens is significant, as it enables the Minister to consider the residency requirement for citizenship to be met, even though the applicant has been outside Australia for the period, or part of the period, a person would otherwise need to be in Australia, to satisfy the general residency requirements.

Immigration policy sets out what is required of applicants applying for Australian citizenship via this pathway. In summary applicants must show:

They hold permanent residency;
That they cannot satisfy the general residency requirements, because of a period of absence from Australia, but for the period of that absence they were the spouse of an Australian citizen; and
That they maintain close and continuing ties to Australia.

Evidence of the applicant’s relationship to their spouse or partner will be required to show that they were married or in a de facto relationship during the relevant period.

Evidence that the applicant has maintained close and continuing ties to Australia while overseas must also be provided. Policy lists the following examples of ways an applicant can prove their ongoing association with Australia:

Evidence that the person migrated to and established a home in Australia prior to the period overseas
They have Australian citizen children
They are in a long term relationship with their Australian citizen spouse or de facto partner
They have extended family in Australia
They make regular return visits to Australia
They can show regular periods of residence in Australia
They possess an intention to reside in Australia
The person has been on leave from employment in Australia while accompanying their spouse or partner overseas
Ownership of property in Australia
Evidence of income tax paid in Australia over the past four years
Evidence of active participation in Australian community based activities or organisations.

The more factors the applicant can provide evidence of, the more likely Immigration will be satisfied that the applicant has close and continuing ties to Australia. It should also be noted that more weight will be given to the above factors where it can be shown that an applicant has been lawfully and physically present in Australia for at least 365 days in the four years before making the application, including at least 90 days as a permanent resident.

If you are interested in applying for Australian Citizenship, are in a relationship with an Australian Citizen but cannot satisfy the general residency requirements at this time, it may be worth considering the concession given to spouses and partners of Australian citizens as an alternative pathway to Citizenship. If you would like assistance with a citizenship application, please click this link to contact Visa Lawyers Australia.