The Issues with Changing Relationship Status for Points Related Migration

With an increase in the allocation of visa places for the points tested permanent visas more than doubling and tripling for the program year 2022-2023, it is expected that the General Skilled Migration program will become a more popular choice amongst foreign nationals.  One unforeseen issue that may arise for certain individuals is a change in relationship status during preparations for a subclass 189 or subclass 190 visa. 

What happens if your status changes from ‘single’ to ‘de facto’ or ‘married’? 

A change in relationship status could have significant consequences for an individual’s subclass 189 or 190 visa application. For those unfamiliar with these points tested visas, as the name suggests, points are allocated to candidates based on a range of factors including their age, English language ability, qualifications, employment experience and even relationship status.  The minimum points threshold to access this scheme via an Expression of Interest is 65 points.  

For individuals who have a skilled spouse or de facto partner (under the age of 45) with competent English or for those who are single, 10 points are awarded towards their total. This can be a coveted position to be in should an additional 10 points bolster someone’s prospects of receiving an invitation for a subclass 189 or subclass 190 visa.  

The spanner in the works comes if an individual’s relationship status changes between the time an invitation is received and lodgement of subclass 189/190 visa with the Department of Home Affairs. Though an individual’s score is locked at ‘time of invitation’, when the delegate makes their assessment during visa application processing, an individual’s score must not be ‘less than the score stated in the invitation to apply for the visa’.  The delegates assessment is made based on Sub regulation 2.26AC(1) which specifies as follows with reference to partner points: 

Item	Qualification	Number of Points
6D111	The spouse or de facto partner of the applicant (the primary applicant):
	(a) is an applicant for the same subclass of visa as the primary applicant; and
	(b) is not an Australian permanent resident or an Australian citizen; and
	(c) was under 45 at the time the invitation to apply for the visa was issued to the primary applicant; and
	(d) at the time of invitation to apply for the visa, nominated a skilled occupation, being an occupation specified by the Minister under paragraph 1.15I(1)(a) at that time; and
	(e) at the time of invitation to apply for the visa, had been assessed by the relevant assessing authority for the nominated skilled occupation as having suitable skills for the occupation and the assessment was not for a Subclass 485 (Temporary Graduate) visa; and
	(f) at the time of invitation to apply for the visa, had competent English
		10
6D112	(a) the applicant does not have a spouse or de facto partner; or
	(b) the applicant has a spouse or de facto partner who is an Australian permanent resident or an Australian citizen
		10
6D113	The spouse or de facto partner of the applicant (the primary applicant):
	(a) is an applicant for the same subclass of visa as the primary applicant; and
	(b) is not an Australian permanent resident or an Australian citizen; and
	(c) at the time of invitation to apply for the visa, had competent English
		10

In practice, this means that if an individual was single at the time they received their invitation and then is married at the time they apply for the visa or before the visa is decided, their points could potentially be ‘less than those conferred at the time of invitation.  This would be the case where a new spouse is not an Australian citizen / permanent resident and cannot provide evidence dated prior to the time of invitation that meets the skills and English requirements for a partner's qualifications.  

The Solution?  

Each case needs to be assessed on its individual circumstances as it will very much depend on the points allocation at the time of invitation versus the points assessment undertaken once the status change has been assessed.  

For most individuals, the reality may be that a new Expression of Interest needs to be lodged / updated to secure a brand new invitation based on the new relationship status.  

The points tested visas are competitive and life changes including relationship status changes can be hard enough without having to worry about whether it jeopardises your migration pathway.  if you want to find out more, please do not hesitate to contact us. You can book a Migration Planning Session with one of our immigration lawyers to seek professional advice by calling 02-8310 5230 or email us to book in a time at info@ahclawyers.com.   

We speak fluent English, Korean, Japanese, Mandarin, Cantonese, Indonesian, Burmese and Malay. If these aren’t your language, we can also help you arrange an interpreter.   

This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.