Should I Stay or Should I Go?

The pattern of circular migration is developing and it is increasingly common for assignees to acquire permanent residence rights in the host country before they are transferred again to undertake a new assignment in another office of the global company.

Many skilled workers assigned to Australia acquire permanent residence status either through sponsorship by their employer or independently through independent skilled or family migration. Relocation to another country to take up a longer term work assignment can affect Australian permanent residence status and should be carefully considered if the individual would like to return to Australia in the future.

Permanent residence visas allow the visa holder to reside in Australia indefinitely, but the travel facility attached to such visa is valid only for a period of five years. This means that following the initial period of five years, a permanent visa holder, who has not obtained Australian citizenship, will need to apply for a Resident Return Visa (RRV) to enable them to return to Australia after a period of time overseas.

In general, where the permanent resident has been physically present in Australia for a period of two of the previous five years, the individual will be eligible for a RRV for a further five-year period. In circumstances where the period of absence was longer than three years, the individual may still be eligible for a RRV visa on discretionary grounds if he or she can demonstrate substantial business, personal, employment and/or cultural ties with Australia which are of benefit to Australia and, if absent for more than five years, compelling reasons for the absence in addition to substantial ties. A combination of those ties can be presented, for example, history of long term residence in Australia prior to the last 5 years, Australian citizen spouse and/children, assets in Australia (personal ties), acceptance of an employment offer in Australia (employment tie) and evidence of individual’s involvement in cultural or religious community in Australia (cultural tie). As the decision is based on discretionary grounds, the outcome is uncertain and with every subsequent RRV application, the level of supporting documentation and justification increases.

Applicants who cannot meet the two-year residency requirement and apply on basis of substantial ties to Australia are only eligible for a 12 month resident return visa.  Again once granted, a 12 month RRV allows the visa holder to remain in Australia indefinitely, but in order to travel to and out of Australia as a permanent resident, the individual will have to apply for further RRVs on annual basis until they spend at least two years in Australia in a five year period before the next RRV application. Subsequent RRV applications can be increasingly harder to obtain as it can be more difficult to prove substantial ties to Australia with the applicant being away for extended periods of time.

Family members of RRV holders can only be granted a RRV for a maximum period of 12 months, unless they can meet the requirements for a five-year RRV in their own right.

Resident return visas valid for shorter periods may be granted where the individual has spent less time in Australia and has not yet established the substantial ties to Australia.

Another important consideration when relocating overseas is how this may affect an Australian permanent resident’s right to apply for Australian citizenship. Key criteria for Australian citizenship includes meeting a prescribed residence requirement as well as satisfying immigration officials that he or she is likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia. The general Citizenship residence criteria require that the applicant has been:

• Lawfully present in Australia for a period of four years immediately before the day the individual made an application for citizenship including a period of 12 months as a permanent resident; and
• Absent from Australia for no more than 12 months during the four years prior to the application and no more than 90 days during the 12 months immediately before applying.

There are also special residence criteria that apply to spouses of Australian citizens as well as individuals engaged in specified activities or kinds of work that require regular travel outside Australia including senior executives, members of crew of a ship or an aircraft, oil and gas workers, and elite athletes participating in Australian sporting team, etc.

With increasingly mobile workforces and pressure on employees to take on short and long term assignments where their skills are needed, the issue of maintaining of Australian permanent residence status is being raised on regular basis. Fragomen has significant experience with RRV and Australian citizenship applications and we can provide strategic advice to clients on the impact of their international assignment on their status in Australia.