Naidu (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a Partner (Temporary) (Class UK) visa. The applicant did not hold a substantive visa at the time of application, meaning they were required to meet specific criteria under Schedule 3 of the Migration Regulations 1994, unless compelling reasons existed for those criteria to be waived. The core of the dispute revolved around whether the applicant satisfied these Schedule 3 criteria, specifically criterion 3001, and if not, whether compelling reasons justified a waiver.

The Tribunal was required to determine if the applicant met the Schedule 3 criteria, which included criterion 3001, requiring the visa application to be lodged within 28 days of the "relevant day." The Tribunal also had to consider whether there were compelling reasons to waive these criteria if they were not met. The definition of "compelling reasons" was not statutorily defined but required circumstances sufficiently convincing to warrant a waiver, as established in case law such as *MZYPZ v MIAC* and *Babicci v MIMIA*. The decision in *Waensila v MIBP* confirmed that compelling reasons could arise at any time, allowing for consideration of the applicant's circumstances as a whole.

The Tribunal found that the applicant did not satisfy criterion 3001 because their Partner visa application, lodged on 16 June 2017, was not made within 28 days of the relevant day, which was identified as 10 May 2017 (the last day the applicant held a substantive visa). As the applicant failed to meet this criterion, the Tribunal then considered whether there were compelling reasons to waive the Schedule 3 requirements. However, the Tribunal noted that the focus of the original decision-maker had been on the waiver of Schedule 3 criteria, and a formal assessment of the genuineness of the applicant's relationship with their sponsor had not been undertaken. Consequently, the Tribunal also refrained from formally considering the genuineness of the relationship.

The Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa, concluding that the applicant did not meet the necessary criteria for the visa.