Law Library Stacks

Back to Index of Laws Concerning Children of Undocumented Migrants

Summary

Among Australia’s limited efforts at regularizing undocumented immigration was a special visa category for “innocent illegal migrants” who lost legal status prior to turning eighteen, spent their “formative years” in Australia, and were separated from the family with whom they entered the country.  The government terminated this program in 2005.   

I. Introduction

Australia’s immigration and border protection policies are based on a visa system in which noncitizens lacking a visa are deemed unlawfully present and must either obtain a proper visa, leave the country, or be subject to detention.[1]  Australia’s refugee and humanitarian program is also structured as a visa system.[2]

With regard to citizenship of children who were born in Australia, prior to August 20, 1986, such children automatically became Australian citizens.  Children who were born in Australia on or after August 20, 1986, are automatically citizens only if they have at least one parent who is an Australian citizen or permanent resident.  Children born in Australia who do not have at least one parent who is an Australian citizen or permanent resident but who spend the first ten years of their life in Australia are also deemed Australian citizens.[3]   

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II. Regularization Efforts

Australia has had only limited experience using regularization programs to address undocumented immigration.  In 1980, a six-month initiative called the Regularization of Status Programme allowed persons without permanent resident status who were present either legally or illegally to apply for such status.  Applicants had to meet health and character requirements, provide background documentation, and be interviewed by government personnel.  While the program was considered a relative success, a 1981 amendment stipulated that any future regularization program would have to have parliamentary rather than mere ministerial approval.[4]    

A limited provision for regularization applied only to certain undocumented persons who arrived in Australia as children.  During the mid-1990s to November 2005, Australia had a special visa category for “innocent illegal” migrants who were separated from the family with whom they entered; the program enabled them to obtain permanent residence after turning eighteen.[5]  A covered “innocent illegal” was

someone who [wa]s over the age of 18, ceased to hold a substantive visa (ie became an ‘unlawful non-citizen’) before he or she turned 18, and [was] determine[d to have] had, before turning 18, spent the greater part of his or her ‘formative years’ in Australia.  In addition, the applicant must not [have been] a member of, nor live[d] with, the family with whom they entered Australia.  Finally, they must not have held a transit visa immediately before becoming an unlawful non-citizen.[6]

The determination regarding whether the migrant spent his or her “formative years” in Australia turned on whether the person spent the greater part of his or her life between the ages of five and eighteen in Australia, or, if not, on the person’s particular circumstances, taking into account where the person spent his/her adolescence, formed a sense of identity, had a connection with a place in the world, or absorbed his/her background culture.[7]

Although the number of visas granted under this category was relatively small, the government reportedly came to view the program as subject to abuse because of “young people purportedly leaving their family temporarily in order to qualify for the visa only to return to live with them once they received a permanent visa.”[8]  The program was ended in November 2005.[9]

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Prepared by Luis Acosta
Chief, Foreign, Comparative, and International Law Division II
September 2017


[1] See generally Kelly Buchanan, Law Library of Congress, Citizenship Pathways and Border Protection: Australia (2013), https://www.loc.gov/law/help/citizenship-pathways/australia.php, archived at https://perma.cc/G5WP-MJFY.

[2] Kelly Buchanan, Law Library of Congress, Refugee Law and Policy: Australia (2016), https://www.loc.gov/law/help/refugee-law/australia.php, archived at https://perma.cc/8CE8-GQTZ.

[3] Australian Government Department of Immigration and Border Protection, Evidence of Australian Citizenship—Eligibility, http://www.border.gov.au/Trav/Citi/Curr/evidence-of-australian-citizenship/eligibility (last visited Sept. 15, 2017), archived at https://perma.cc/E33H-7KDC.

[4] House Comm. on the Judiciary, 99th Cong., 1st Sess., Impact of Illegal Immigration and Background on Legalization:  Programs of Other Countries 154–57 (Comm. Print 1985).

[5] Mary Crock & Laurie Berg, Immigration, Refugees and Forced Migration: Law, Policy and Practice in Australia 221 (2011).

[6] Parliament of Australia, Parliamentary Library, Bills Digest No. 58 1996-97: Student and Youth Assistance Amendment (Waiting Period) Bill 1996, n. 8 (Nov. 22, 1996), http://www.aph.gov.au/Parliamentary_Business/‌Bills_Legislation/bd/BD9697/97bd058, archived at https://perma.cc/ZG25-JSPY.

[7] John Vrachnas et al., Migration and Refugee Law: Principles and Practice in Australia 149 (2005).

[8] Crock & Berg, supra note 5, at 221 n.81.   

[9] Id. at 221.