Can I Get a Partner Visa If My Partner Is in Prison?

Does a partner in prison end our relationship for visa purposes?

A partner in prison does not end the relationship for visa purposes, because the law requires that the couple do not live apart on a permanent basis, and a period of imprisonment is usually a temporary separation forced by circumstances. The Department will still ask whether the relationship continues in a real way while one partner is in custody. Our article on a partner visa when a partner is in prison explains how the Department approaches these cases.

Can my partner sponsor me from prison?

A partner can sponsor from prison if they are an Australian citizen, permanent resident or eligible New Zealand citizen and the sponsorship is approved. The Department may refuse the sponsorship under regulation 1.20KC where the sponsor has been convicted of a relevant offence and has a significant criminal record for it. A conviction for an offence outside the relevant category cannot be used to refuse the sponsorship under that regulation. The firm's page on partner visa sponsorship limitations explains the limits that apply to sponsors.

What evidence shows the relationship continues during imprisonment?

Evidence that the relationship continues during imprisonment includes prison visit records, letters, approved phone and video call records, money deposited for the partner's use, and joint plans for release, such as accommodation and work. Statements from family and friends who know the couple, made on Form 888, can explain how the relationship has been maintained. Our article on partner visa commitment evidence explains how commitment is shown when a couple cannot live together.

Will the Department tell me about my partner's convictions?

The Department may tell the visa applicant about the sponsor's convictions for relevant offences, because the sponsor must consent to that disclosure as part of the sponsorship. The purpose is to allow the applicant to make an informed decision about the relationship and their safety. Convictions for other kinds of offences are not disclosed under this process. Our article on partner visa sponsorship limitations explains the sponsor's obligations.

What if it is the visa applicant who is in prison?

If it is the visa applicant who is in prison, the main issue is the applicant's own character under section 501 of the Migration Act, not the sponsor's record. A sentence of imprisonment of 12 months or more gives the applicant a substantial criminal record, and the Department must then decide whether to refuse. The relationship and the interests of the Australian partner are relevant to that decision. Our article on a partner visa with a criminal record explains the character test.

How does My Migration Lawyers help couples when one partner is in prison?

My Migration Lawyers works out first which partner's record is in issue and which test applies, then plans the application around prison visits, communication rules and release dates so that the sponsor can sign forms and provide documents on time. Where regulation 1.20KC or the character test is engaged, the firm prepares submissions on rehabilitation, the relationship and the family. Couples can speak with our partner visa lawyers about the timing.