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New Citizenship Act 2007 - Old or New Residence Period?
Date: 04 May 2007
Will the new residence requirement for citizenship by conferral affect me?
That's a question that many aspiring or existing Australian permanent residents are asking.
The new Act has provisions to exempt existing permanent residents from the new residence period of at least 4 years for citizenship by conferral.
There are several key considerations in play:
If you are outside of Australia immediately before Commencement Day, you need to be classified as a permanent resident under the old Act.
A permanent visa holder is always classified as a permanent resident when he/she is in Australia.
However, when a holder of a permanent visa is outside of Australia, the law explicitly states that only a holder of a Resident Return Visa (RRV) is considered to be a permanent resident while outside of Australia.
DIAC's letters granting permanent visas carry a paragraph advising recipients of the imminent changes in Australian citizenship rules.
DIAC simplifies what is defined as a permanent resident in that paragraph and does not address the issue of what happens to people who have been granted a permanent visa which has been duly validated and aren't in Australia immediately before Commencement Day.
A holder of a permanent visa granted before Commencement Day and not validated before Commencement Day will definitely need to meet the new residence requirements.
A holder of a valid RRV whether inside or outside of Australia is considered by the old Act to be a permanent resident of Australia - and will therefore be "grandfathered" by the new Act insofar as residence requirements are concerned.
A holder of a permanent visa granted before Commencement Day and validated before Commencement Day and is present in Australia immediately before Commencement Day will also be grandfathered similarly.
The grandfathering provision exempts permanent residents from the new 4-year requirement.
This is allowed only if you apply within 3 years of the commencement of the new Act.
So, really, if you've been granted a permanent visa, and have no intention of migrating to Australia within 1 year of Commencement, it's quite irrelevant whether or not a validated permanent visa is enough for the 2/5 rule.
A holder of a permanent visa granted before Commencement Day and validated before Commencement Day but is absent from Australia immediately before Commencement Day is - under the strict definition of the Citizenship Act 1948 is not considered a permanent resident and will need to meet the new residence requirements of the Australian Citizenship Act 2007.
For those who are interested, the diagram below illustrates the legislative source of this opinion.
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