Citizenship Requirements - Back on the Agenda

josie By Josie Marr
Thursday, 16 August 2018

As the Australian Government continues its efforts to strengthen the integrity of Australian citizenship, it has indicated that the proposed changes to Australian citizenship laws are back on the agenda for September 2018.

The Government initially announced these changes on 20 April 2017 and made attempts to have them take effect on the same date. However, a Bill was required to be drafted and passed through Parliament first, which subsequently failed on 18 October 2017.

Since then, there have been ongoing discussions with a view to have the changes finally introduced into Australian law.

Proposed changes

Following previous attempts, the proposed changes will require the applicant to:
  • have lived in Australia as an Australian permanent resident for at least 4 years
  • pass an English language test. Last year, the recommended pass level for Australian citizenship was Competent English
  • pass a new citizenship test. This will be a `strengthened' version of the current test and is designed to assess the applicant's understanding of, and commitment to, Australian values
  • complete the citizenship test only once. This means applicants must pass the higher level test on the first attempt
  • prove their integration and contribution to the Australian community

Current requirements

Through the general pathway, applicants for Australian citizenship need to start by meeting the residence requirement.

Under the current legislation, applicants must have been in Australia for at least:

  • the last 4 years, on any temporary or permanent visa. During this time, no more than 12 months can be spent overseas, and
  • the last 12 months, on a permanent visa, with no more than 3 months spent overseas.

In addition to this:

  • applicants have no English language test they need to pass
  • applicants are able to complete the current citizenship test as many times as they need (generally, the test failure rate is low),
  • applicants need to demonstrate they are of good character. The proposed changes to meet integration requirements now appears to give Immigration more discretion to refuse an application, if applicants are found to have not sufficiently integrated into Australian society.

When will this happen?

The legislation needs to be discussed and passed by Parliament. Last year, it took 6 months for the proposal to lapse however, this agenda has been the topic of discussion now for more than 12 months so has the potential to take effect soon.

Will I be impacted?

The most commonly types of visa holders to be impacted by the residence requirement change will be:
  • Provisional partner holders who have had the temporary stage of their permanent partner application approved. Generally, they will have been living in Australia for at least 2 years before being assessed for the permanent stage. Provisional partner visa holders may be living in Australia for at least 6 years before meeting the proposed residence requirements
  • 457/TSS visa holders who lived and worked in Australia for a number of years before qualifying for permanent residence. It is common for 457/TSS visa holders to transfer to another sponsoring employer, after losing their jobs and after a considerable time with the same employer. In this instance, the time required to work in the new position for the employer will start again before they qualify for employer sponsored permanent residence. They could be living in Australia for at least 7 years before meeting the proposed residence requirements for citizenship
  • Student visa holders who complete studies in Australia before starting the process for a permanent visa through the General Skilled Migration program. In some instances this will see students in Australia for at least 8 - 9 years before they can consider lodging a citizenship application.

What should I do?

If the citizenship changes are passed the process to acquire Australian citizenship will become difficult and take longer for applicants to achieve.

Option 1 - Apply Now

If you meet the current requirements for Australian citizenship, consider lodging your application now - understand it may take some time to be processed:

  • If the legislation is passed, after you lodge the application and before a decision is made, the changes may be applied retrospectively meaning your application could be refused. At this stage, you lose the application fee of $285 but, the outcome would not impact the permanent residence you hold, nor would there be adverse consequences
  • Most of the legislative changes taking place over the last 16 months have not been applied retrospectively. This would mean there is an advantage to lodging your citizenship application before the legislation is introduced to Parliament.

Option 2 - Wait Until the Legislative Process is Completed

This would require you to keep a close eye on the developments and progress of these citizenship changes, which, recently, has not been a large topic of public discussion.

Option 3 - Wait to Meet the Proposed Residence Requirement

This will require you to wait an additional 3 years on your permanent residence visa and spend most of your time in Australia.

Option 4 - Apply for Citizenship under the Concessions to the Residence Requirements

This might be possible if you can show significant hardship or that you have needed to travel as a result of your employment.

Conclusion

Since April 2017, a large number of legislative changes have been introduced with more to come.

Immigration law is one of the most complicated pieces of Australian law and we strongly recommend applicants seek professional immigration advice from a reputable Registered Migration Agent or practicing solicitor specialising in Immigration law.

If you would like to know more about how these changes impact you please book a consultation with one of our advisors - either in person in Melbourne or Sydney, or via phone and skype.

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