2013-Aug 30: Variation of Conditions – temporary entry class visas - further advice

Visa Pak 126 - Information about Variation of Conditions – temporary entry class visas - further advice to staff about considering the request in particular during deportation liability.

Visa Paks

30 August 2013

Variation of Conditions – temporary entry class visas - further advice

Staff have requested advice on considering a request for a Variation of Conditions (VOC), in particular whether VOCs should be issued during deportation liability.

Immigration instructions at E3.25.1 Varying the conditions of temporary entry class visas outlines when holders of temporary entry class visas should apply for a VOC, and when an Immigration Officer may grant a VOC. An Immigration Officer’s power regarding VOCs under section 52(2) and (3) of the Immigration Act 2009 is expressed using the term “may”, indicating that this power is a discretionary one.

When considering a VOC, Immigration officers should consider:

  • whether the applicant’s request is merited, and
  • meets relevant immigration instructions, and
  • would still meet the objectives of the instructions which the visa was granted under.

Given that the grant of a VOC is discretionary, Immigration officers may decline to grant a VOC where:

  • the circumstances do not merit the grant of a VOC, and/or
  • the request does not meet relevant immigration instructions, and/or
  • the varied conditions would not meet the objectives of the instructions which the visa was granted under.

Examples

  • A VOC should not be granted if a person has been made liable for deportation for breaching the conditions of their visa, or during deportation liability (* the circumstances would not merit the grant of a VOC as doing so would undermine the deportation liability process).
  • A VOC should not be granted if an Essential Skills worker has a new employment contract with the same employer but for only 15 hours per week, as this would not meet the definition of full-time employment (* the request does not meet relevant immigration instructions).
  • A VOC should not be granted if a person holds an Essential Skills work visa and is requesting a VOC to change their place of employment (region/area where their employer is located) (* the varied conditions would not meet the objectives of the Essential Skills work instructions without a labour market test).

Staff are advised to consider using immigration instructions at E7.15 Potentially prejudicial information to ensure that applicants are given the opportunity to comment before a discretionary decision is made on the basis of any potentially prejudicial information (PPI) when considering a VOC.

Action

  • Staff should note that a VOC is not an application for a visa, and the request should be considered on its merits according to the relevant immigration instructions, and in particular ensuring that any grant of a VOC would still meet the objectives of the instructions the visa was granted under.
  • The decision to grant or not grant a VOC is discretionary.
  • Staff should not grant a VOC if a person has been made liable for deportation for breaching the conditions of their visa.
  • Staff should not grant a VOC during deportation liability.
  • Staff are advised to consider giving applicants an opportunity to comment where required when considering a VOC according to the immigration instructions at E7.15 Potentially prejudicial information.

Staff should ensure they have read IAC 13/03 Varying the conditions of temporary work visas and advice provided on 30 August 2013 – Variation of Conditions – temporary entry class visas.