UK citizens & permanent residents are exempt from LMT

By Lorenzo Boccabella, Barrister-at-law and specialist in migration law

 

Both UK passport holders and UK permanent residents are now exempt from Labour Market Testing (LMT)!

This is a result of the Australia-United Kingdom Free Trade Agreement (AUKFTA).

Of some particular interest is that permanent residents of the UK are also exempt from LMT which, of course includes a whole of lot people from earn Europe, the Indian subcontinent and Africa (particularly from former Briths colonies).

This whole area of LMT is confusing and sometimes illogically applied by Immigration. Legends and the PAM are rarely up to date. For example the UK position is NOT referred to in the PAM but  having studied the agreement I am 100% confident in legal terms that citizens and permanent residents of the UK are exempt from LMT.

Before leaving the UK, the subclass working holiday visa 417, was amended to allow UK citizens to apply up to age 35, not 30 as previously prescribed. Other countries in the ‘up to 35’ category are Canada, Denmark, France, Ireland, & Italy. HK SAR passport holders are restricted to apply before turning 30 but those Hong people who are BNO’s can apply up to 35, there would still be a few of those left. As I have written elsewhere, the subclass 417 working holiday visa is a very useful recovery visa for those who get into some sort of visa trouble in Australia, although it is not the ‘instant’ visa is used to be, it would take a few weeks to get it and the applicant needs to be offshore both at time of application and decision for the first grant of the visa.

Returning to LMT, the PAM currently states in relation to the exemption for International trade obligations:

“The practical effect of this legislative instrument is that evidence of LMT is not a nomination requirement if:

·       citizen/national of China, Japan, Mexico, Thailand or Vietnam; or

·       citizen/national/permanent resident of Canada, Chile, Korea, New Zealand or Singapore.”

 

The ‘permanent resident’ part is often forgotten about and again is useful, particularly for partners who are not citizens of the LMT exempt country.

Australia has no individual agreement with Mexico or Vietnam yet both countries are included in the exemption list in the PAM for LMT. 

But as you can see no mention of the UK, yet the agreement started on 31 May 2023!

I am yet to study the terms of the India-Australia Economic Cooperation and Trade Agreement (IAECTA) to see exactly how Indian passport holders are exempt form LMT, there are undoubtedly some exemptions.

Certainly the deal struck with China regarding LMT in the China-Australia Free Trade Agreement (ChAFTA) will probably never happen again, (although it did happen with the UK for very special reasons). The difficulty with doing anything with China in any international agreement sense is that often China often does not reciprocate, the WTO is a good example.

The whole LMT question is up for review and initial soundings indicate that LMT will be overhauled (although experience shows that ‘rumours’ of changes are often misleading, the only real thing one can do is read the regulations when they are published).

Of course, unless specifically stated otherwise in the regulation, there is no time of application nor time of decision dichotomy for all the requirements for a nomination under Reg 2.72. This means that even nominations lodged prior to 31 May 2023 would not be required to meet LMT for UK citizens or permanent residents!

The whole deal involving the UK is worth some close study and is fully set out at Australia-UK FTA Outcomes Documents | Australian Government Department of Foreign Affairs and Trade (dfat.gov.au)

For example there is an ‘Innovation and Early Careers Skills Exchange Pilot’ which will enable a limited number of UK passport holders to obtain the Subclass 403 - Temporary Work (International Relations) 

This will apply for UK citizens aged between 21 and 45 of age at the time of application & hold tertiary qualifications and with a with a demonstrated contribution to innovation in areas including:

  • Research and Development

  • Renewable Energy

  • Artificial Intelligence

  • Medical Technology

  • FinTech

  • AgriTech

  • Audio-visual and Cultural industries

Obviously the working holiday 417 visa is the better option for those under 35 but for those over 35, it another pathway. By policy it is a 12 months visa but could be an excellent stepping stone for those over 35. Of course the advantage of the 403 visa is the ability to work for the one employer for 12 months for those under 35.

Also attached to this blog is the 2023 compilation of the legislative instrument, Migration (International trade obligations relating to labour market testing) Determination.

 

Allegra Boccabella