Sunday, 15 March 2009

Citizenship and Immigration Changes- Removal of Discrimination

With the changes to remove discrimination against same sex couples taking effect today, it is interesting to see the specific changes that impact on immigration and citizenship.

I was alerted to these by a colleague, Adam Welch, a prominent immigration lawyer. Thank you, Adam.

Citizenship Changes

Amendments to the Australian Citizenship Act 2007 to remove discrimination against same-sex de facto couples and their children
15 March 2009 Legislation Change
Client summary
The Same-Sex Relationships (Equal Treatment in Commonwealth Laws–General Law Reform) Act 2008 (the Amending Act) amends the Australian Citizenship Act 2007 (the Act). The Amending Act received Royal Assent on 9 December 2008. Part 1 of Schedule 10 to the Amending Act will commence by proclamation on 15 March 2009.
The Amending Act amends the Act to remove discrimination between same-sex and opposite-sex de facto couples, and their children.
Affected legislation
The following provisions of the Act are amended:
Section 3
Section 6
Section 8
Subsection 22(9)
Subsection 22(10)
Additional information:
Under the amendments, married couples and de facto couples (whether of the same-sex or opposite-sex) will be recognised as the parents of the child(ren) that they have had as a result of artificial conception procedures with the use of donated genetic material or through a surrogacy arrangement under a prescribed State or Territory law (both as recognised under the Family Law Act 1975). Such parents will additionally be recognised as ‘responsible parents’ of their child(ren). Amendments will also provide parity between same-sex and opposite-sex de facto couples in accessing the residence discretion to count time spent outside Australia as time spent in Australia in meeting the residence requirement for Australian citizenship by conferral.
Application of the new provisions:
Application of amendments affecting sections 3, 6 and 8The amendments affecting sections 3, 6 and 8 of the Act apply in relation to the acquisition or cessation of Australian citizenship on or after 15 March 2009 because of circumstances (including relationships) existing before, on or after 15 March 2009.
Application of amendments of section 22The amendments of section 22 of the Act apply in relation to applications to become an Australian citizen:
that are made on or after 15 March 2009; or
that:
were made before 15 March 2009; and
were applications in relation to which decisions were not made before 15 March 2009 to approve, or to refuse to approve, the applicants becoming Australian citizens.
Forms: The following forms will be affected:
Form 1299i – How to apply for Australian citizenship by conferral.
Instructions: Chapters 1, 3 and 5 of the Australian Citizenship Instructions will be amended to take effect on 15 March 2009, when the legislative changes take effect.

Amendments concerning children

Amendments to the Immigration (Guardianship of Children) Act 1946 to remove discrimination against same-sex de facto couples and their children
15 March 2009 Legislation Change
Client summary
The Same-Sex Relationships (Equal Treatment in Commonwealth Laws–General Law Reform) Act 2008 (the Amending Act) amends the Immigration (Guardianship of Children) Act 1946 (the Act). The Amending Act received Royal Assent on 9 December 2008. Part 4 of Schedule 10 to the Amending Act will commence by proclamation on 15 March 2009.
The Amending Act amends the Act to remove discrimination between same-sex and opposite-sex de facto couples, and their children.
Affected legislation
The following provisions of the Act are amended:
Section 4
Section 6
Additional information:
The Act provides for an unaccompanied minor entering Australia to have a legal guardian in Australia. The amendments to the Act will enable de facto couples, whether same-sex or opposite-sex, and married couples, who have children as a result of artificial conception procedures with the use of donated genetic material or through a surrogacy arrangement under a prescribed State or Territory law (both as recognised under the Family Law Act 1975), to be recognised as the parents of the non-citizen minor. These amendments also provide for relatives of the minor to include those who would be relatives if they were married to the minor’s blood relatives but who are instead in a de facto relationship with the minor’s blood relative (including a same-sex de facto relationship).
Application of the new provisions:
The amendments apply in relation to persons under 18 who enter Australia on or after 15 March 2009.
Forms: The following form will be affected:
Form 1258 - Agreement to undertake care of an unaccompanied humanitarian minor.
Instructions: PAM3: Immigration (Guardianship of Children) – I(GOC) will be amended to reflect these changes.

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