Can I Get a Partner Visa If I Have Been Unlawful for More Than 28 Days?

Why does 28 days matter for a partner visa?

The 28-day point matters for a partner visa because Schedule 3 criterion 3001 generally requires an applicant without a substantive visa to apply within 28 days after their last substantive visa ended. A person who applies after that time cannot meet criterion 3001 and must rely on a waiver. The other Schedule 3 criteria look at whether the unlawful status arose from factors beyond the applicant's control and whether they substantially complied with earlier visa conditions. Our article on Schedule 3 criteria for a partner visa explains each one.

What counts as compelling reasons to waive Schedule 3?

Compelling reasons to waive Schedule 3 are reasons strong enough to justify granting the visa despite the period without a visa, and they are assessed on all the facts at the time of decision. Matters often raised include the interests of an Australian citizen child, serious illness affecting the sponsor, and circumstances that make departure exceptionally difficult. The Department generally does not treat a genuine relationship or the hardship of separation as enough on their own. The firm's page on Schedule 3 waivers explains what the Department looks for.

Does having a child together help a Schedule 3 waiver?

Having a child together can help a Schedule 3 waiver, because the best interests of an Australian citizen or permanent resident child are an important consideration in deciding whether compelling reasons exist. The submission should show the child's real circumstances, the role each parent plays and the effect that separation would have. A child does not guarantee a waiver, but the child's position is often central to it. Our article on partner visa compelling reasons explains how these points are presented.

Will my overstay affect other parts of the application?

An overstay will affect other parts of the application, because the Department considers the applicant's immigration history and any unlawful work when it assesses Schedule 3 and the applicant's credibility. The overstay must be disclosed accurately, and any explanation should be supported by documents. Our articles on a partner visa after overstaying and on unlawful work explain these risks.

Is applying from outside Australia an alternative?

Applying from outside Australia is an alternative because Schedule 3 does not apply to the offshore Subclass 309, but the move must be planned. A person removed under section 198 faces a 12-month exclusion period under special return criterion 5002 unless it is waived, while a person who departs before any removal is not affected by that criterion. The couple must also plan for time apart while the application is processed. Our article on the Schedule 3 refusal explains when the offshore path becomes the better choice.

How does My Migration Lawyers prepare a partner visa for someone unlawful for a long period?

My Migration Lawyers builds the Schedule 3 case from the applicant's full history, including when and why the last substantive visa ended, what happened afterwards and what has changed in the family since. The firm gathers independent evidence for each compelling reason rather than relying on the couple's own statements, and tells the couple plainly where the onshore path is weak. Couples can speak with our partner visa lawyers before lodging.