Bai (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820, where the applicant lodged their application more than 28 days after their last substantive visa expired. The primary dispute revolved around whether there were "compelling reasons" to waive the Schedule 3 criteria, which typically require an applicant to hold a substantive visa at the time of application. The decision was made by the Tribunal, presided over by Edward Howard.

The legal issues before the Tribunal were whether the applicant had demonstrated compelling reasons to justify a waiver of the Schedule 3 criteria, specifically in relation to the genuine and continuing nature of the relationship, and whether the application had been made within a reasonable timeframe given the circumstances. The Tribunal was required to consider the financial, household, and social aspects of the relationship, as well as the nature of the commitment between the parties, and whether the relationship was recognised by family and friends.

The Tribunal reasoned that compelling reasons existed to waive the Schedule 3 criteria. It found that the parties were in a long-standing, committed, and exclusive relationship for over five years, which itself constituted a compelling reason as per Clause 10.1 of Schedule 2 of the Migration Regulations (Amendment) 1996 NO. 75. Furthermore, the Tribunal accepted extensive evidence detailing the sponsor's serious and critical heart condition, including multiple surgeries and ongoing complications, and the significant emotional, psychological, and physical dependence the sponsor had on the applicant for recovery and daily life. The Tribunal also noted that the sponsor's adult children, who were unable to provide regular assistance, corroborated the applicant's vital role in the sponsor's well-being. The Tribunal concluded that separation would likely cause serious psychological injury and stress to the sponsor, necessitating further medical intervention.

The Tribunal remitted the decision for further hearing, indicating that the decision to grant or refuse the visa had not been finally made, but that the compelling reasons for waiving Schedule 3 criteria had been established.