2013-Mar 22: Variation of Conditions – Temporary entry class visas

Visa Pak 104 - Clarification for staff on variation of Conditions – Temporary entry class visas and when these should be granted.

Visa Paks

22 March 2013

Variation of Conditions – Temporary entry class visas

Sometimes when considering an application for a variation of conditions (VOCs), matters come to our attention which may mean a person should not have been granted the visa they hold, or should no longer hold a temporary entry class visa (e.g. health, character, bona fides, breach of visa conditions). Clarification has been sought on what action is appropriate in such instances.

While a person requesting a VOC completes a specific application form, and provides an application fee, a VOC request is not an application for a visa and regardless of outcome does not alter the currency of the visa. The request should be considered on its merits and according to the relevant immigration instructions (see useful references below).

However, should issues arise relating to whether the visa should have been granted in the first place, or if matters arise which may mean the person should no longer have a visa, (i.e. health, character, bona fides, breach of visa conditions) then action under Section 157 Deportation liability of temporary entry class visa holder for cause of the Immigration Act 2009 (the Act) should be considered by way of referral to an Immigration Officer – Compliance.

Useful references:

  • Section 49 of the Act ‘Visas may be subject to conditions’, in particular subsections 49(1) (b) and (e) applying to temporary entry class visas.
  • Section 52 of the Act ‘Conditions on temporary entry class visas’.
  • Section 157 of the Act ‘Deportation liability of temporary entry class visa holder for cause’.
  • Immigration instructions relating to conditions: at E3.15 Conditions to which holders of temporary entry class visas are subject, E3.20 Conditions of temporary entry class visas may be imposed, varied or waived, E3.25 Conditions of temporary entry class visas may be imposed, varied or waived and W2.25 Conditions of work visas.
  • Immigration instructions relating to Deportation procedures: E3.60 Deportation liability of temporary entry class visa holder for cause; D2.15.15 Deportation liability of temporary entry class visa holder for cause
  • IAC 09/05 Work Policy and Changes in the Labour Market.
    Action:
  • Staff should note that a VOC is not an application for a visa, and the request should be considered on its merits and according to the relevant immigration instructions.
  • Staff should consider referral to an Immigration Officer – Compliance should issues arise when considering a VOC that may mean the person should no longer have a visa (i.e. health, character, bona fides, breach of visa conditions).
  • Also read the advice provided on 30 August 2013 - Variation of Conditions – temporary entry class visas - further advice