1731993 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, brought before the Tribunal by an applicant who did not hold a substantive visa at the time of application. The central dispute revolved around whether the applicant met the criteria set out in Schedule 3 of the Migration Regulations 1994, or if there were compelling reasons to waive these criteria.

The Tribunal was required to determine if the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, which mandates that an application be lodged within 28 days of the "relevant day" (defined as the last day the applicant held a substantive visa). If criterion 3001 was not met, the Tribunal then had to consider whether compelling reasons existed to waive the Schedule 3 requirements. The applicant had previously held vocational student visas, which expired on 15 March 2017, and a subsequent student visa application was refused on 12 April 2017. The partner visa application was lodged online on 14 May 2017.

The Tribunal found that the applicant did not satisfy criterion 3001 as the partner visa application was lodged more than 28 days after the applicant last held a substantive visa on 15 March 2017. However, the Tribunal then considered the requirement for compelling reasons to waive the Schedule 3 criteria. Drawing on established case law, the Tribunal noted that "compelling reasons" must be sufficiently convincing and the circumstances sufficiently powerful to justify waiving the criteria. While the applicant did not meet the 28-day timeframe for criterion 3001, the Tribunal concluded that the matter should be remitted to the Department for reconsideration, directing that the applicant be taken to meet criterion 820.211(2)(d) of Schedule 2 to the Regulations.