28 days ‘grace’ after your visa ends?
I have lost count of how often I have been approached by a visa holder who says something along the lines of “my visa ends on this date, but I will use the 28 days grace period to stay until…” It’s been one of the few constants over the years and I heard it again last week.
So I want to be really clear – IT IS A MYTH!
There is no grace period. When your visa ends, it ends.
S.13 of the Migration Act says you are lawful if you “hold a visa that is in effect” [1]. S.14 of the Migration Act [2] is great at stating the obvious – if you are not a lawful non-citizen then you are unlawful.
But maybe the visa is still ‘in effect’ for 28 days grace after the expiry date? Nope, they have you on that too – S.82(7) says “A visa to remain in Australia … until a particular date ceases to be in effect … on that date” [3].
So if you have a visa that is in effect (valid) you are lawful. When that visa is not in effect, the day after it expires, you are unlawful. And if an officer knows or reasonably suspects that you are unlawful they must detain you (S.189 [4])
Don’t just take my word for it though – this is the official Immi page “It is unlawful to stay in Australia without a valid visa” [5].
But that page is also where the 28-day myth probably gets a start, it also says “If you leave Australia as a person who did not hold a valid visa for more than 28 days, the Department could also refuse to grant you another visa for up to 3 years”.
So there is a sort of 28-day grace period, but it is not what people think. You don’t have 28 ‘extra’ days after your visa ceases. Once you hit the end date you have to leave, if you don’t you are unlawful and risk detention and removal. But if you accidentally go unlawful and leave inside 28 days, they won’t ban you for three years. So the ‘grace’ period is an exclusion from some of the worst consequences of being unlawful, not permission to stay.
In short there is no ‘grace’ period in a meaningful sense. The end date of your visa is when Australia expects you to leave (or move to a new visa).
As always if you have any questions on this, would like to talk through your visa options or understand how this may impact you feel free to reach out to us through hello@mcdonaghmigrations.com.au and we can set up a time to chat.
This is generic information correct at time of posting. It should not be relied on as personal or specific advice and is provided by McDonagh Migrations Pty Ltd authored by Andrew McDonagh MARN 2418484 for information and general education only
[1] https://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s13.html
[2] https://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s14.html
[3] https://classic.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s82.html
[4] https://classic.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s189.html
[5] https://immi.homeaffairs.gov.au/visas/visa-about-to-expire/if-you-dont-have-a-valid-visa