Migration (Health Criteria—Specified Countries) (LIN 23/071) Specification 2023

The instrument is a specification instrument under the Migration Regulations 1994. Its main concept is a designated list of jurisdictions, presented as Schedule 1, which is declared by the Minister to be “the countries mentioned in Schedule 1 … for the purposes of paragraph 2.25A(1)(b) of the Migration Regulations” (opening recital). The instrument therefore functions as a subordinate-law listing: it substitutes an enumerated set of place-names into the statutory framework that refers to a class of “specified countries” via paragraph 2.25A(1)(b).

Key features of the instrument’s content are:

• Authority: the instrument is made by the Minister under paragraph 2.25A(1)(b) of the Migration Regulations, which is the sole statutory source the instrument invokes (opening recital).
• Operative schedule: Schedule 1 is the operative specification of place-names; the recital explicitly ties the schedule to the Migration Regulations’ paragraph 2.25A(1)(b).
• Repeal: a prior specification instrument (IMMI 13/161) is expressly repealed by this instrument, so the Schedule 1 list replaces the earlier list once this instrument comes into force (opening recital, subparagraph (b)).
• Commencement: the instrument’s effect is deferred until the day after registration (opening recital).

The schedule itself is organised alphabetically by letter headings A to Z and lists a large number of countries, territories and place-name entries. The list includes sovereign states, constituent territories, dependencies and named territories or entities (for example entries such as “Hong Kong Special Administrative Region of the People's Republic of China”, “Macau Special Administrative Region of the People's Republic of China”, and a number of overseas territories and islands). The schedule also contains some non-standard or composite naming forms (for example “Republic of India”, “China, People's Republic of”, “Taiwan”, “Tibet”) and odd formatting artefacts (discussed below).

Conceptually, the instrument is a device for aligning a named set of jurisdictions with a trigger in the Migration Regulations. It does not itself create substantive migration criteria, nor does it amend the Migration Regulations text. It is purely the Minister’s specification of the place-names that the Migration Regulations’ paragraph 2.25A(1)(b) will treat as “specified countries”.

The instrument directly affects anyone, legal or natural, whose migration matter is governed by paragraph 2.25A(1)(b) of the Migration Regulations 1994 and where that paragraph requires reference to an administratively specified list of countries. The instrument does not define who that group is in its own text; it operates by supplying the list that the Migration Regulations provision references.

Actors with immediate practical interest include:

• Decision-makers within the Department of Home Affairs and delegated decision-makers who apply paragraph 2.25A(1)(b) of the Migration Regulations. For those decision-makers the Schedule 1 list is the authoritative enumeration to use from the instrument’s commencement.
• Visa applicants and their advisers whose application, assessment or outcome depends on whether a person or a relevant country is included in the specified list identified by paragraph 2.25A(1)(b) of the Migration Regulations; their status relative to the Schedule 1 entries will be relevant where that regulation applies.
• Medical assessors, panel physicians and service providers whose assessments feed into migration health criteria processes if the inclusion or exclusion of particular jurisdictions in Schedule 1 changes the applicable health requirements under the Migration Regulations (but the instrument itself does not state what health outcomes or thresholds change).
• Information technology, case management and compliance systems maintained by government and by authorised partners that must represent the “specified countries” for automated decision-making, triaging or reporting.

The instrument does not itself create obligations on private parties other than the practical effect that where a Migration Regulations’ mechanism looks to “specified countries”, Schedule 1 is used. The instrument is silent about how a person’s connection to any entry in Schedule 1 is to be interpreted (for example, whether by citizenship, nationality, place of birth, passport, habitual residence or other tie); those interpretive rules, if any, are found in the Migration Regulations or policy guidance, not in this instrument. The instrument also repeals IMMI 13/161, so parties must rely on this instrument rather than the earlier one from its commencement day.

Who decides: the specification is made by the Minister, Andrew Giles, as the instrument is signed and presented by the Minister (dated 21 December 2023). Who enforces or implements: the instrument provides the list that operational parts of the Migration Regulations will apply; it contains no enforcement measures itself.

The instrument itself imposes no novel duties, rights, fees or procedural rules. Its text is limited to specifying a list (Schedule 1), repealing a prior specification (IMMI 13/161), and stating its commencement (day after registration). There are therefore no express obligations or entitlements contained in this instrument beyond the legal effect that it supplies the list to which paragraph 2.25A(1)(b) of the Migration Regulations will refer.

Operationally, rights and duties that will be affected are those embedded in the Migration Regulations and that refer to “specified countries” under paragraph 2.25A(1)(b). Because the instrument ties Schedule 1 to that paragraph, any duty imposed by the Migration Regulations that depends on whether an individual or jurisdiction is a “specified country” will be applied using this Schedule 1 list. Conversely, any right in the Migration Regulations that depends on non-inclusion in a list or on inclusion will likewise be determined by Schedule 1 once the instrument commences. The instrument does not itself define which factual attribute (for example nationality, domicile, place of birth) determines whether a person “is” connected to a listed entry; therefore the interpretive allocation of duties and rights remains with the Migration Regulations text and any policy or administrative guidance that implements that text.

Because the instrument repeals the prior specification (IMMI 13/161), rights or duties previously assessed under that prior list will, from this instrument’s commencement, be assessed against Schedule 1. That can change the identity of the countries captured by the referenced regulation and, by consequence, alter how duties and rights under the Migration Regulations attach to particular people or cases. The instrument contains no transitional clause; any transitional matters (for example ongoing matters started under the old list) would need to be addressed through the Migration Regulations, administrative practice, or other instruments , none of which are contained in this instrument.

Finally, because the instrument contains no penalties, enforcement provisions or review procedures, the procedural rights to internal review or merits review are not created or altered by this instrument per se. Those procedural entitlements and review pathways remain governed by primary or other subordinate legislation referenced by the Migration Regulations.

This instrument contains no provisions creating penalties, pecuniary fines, criminal offences or administrative sanctions. Its operative clauses are confined to specification (Schedule 1), repeal (IMMI 13/161) and commencement timing (day after registration). There are no express enforcement mechanisms, compliance notices, infringement regimes or enforcement discretions stated in this text.

Because the instrument operates by reference to paragraph 2.25A(1)(b) of the Migration Regulations 1994, any enforcement consequences that flow from whether a person or country is treated under that paragraph will arise under the Migration Regulations and associated law. This instrument does not amend or reproduce the enforcement or penalty provisions of the Migration Regulations. Accordingly, enforcement consequences (if any) that depend on classification under paragraph 2.25A(1)(b) must be sought in the Migration Regulations or other instruments; the specification instrument is silent on enforcement.

From an administrative perspective, the instrument requires administrators to use Schedule 1 as the authoritative list for the relevant Migration Regulations provision. Failure by an administrative actor to rely on the correct, in-force specification could produce internal errors; however this instrument does not itself prescribe sanctions for administrative non-compliance. Any remedies, sanctions or correction mechanisms for misapplication of the specified list would be found in the Migration Regulations, departmental policy and administrative law, not in the instrument itself.

In short, the instrument is a non‑punitive, declaratory specification instrument; it does not by itself create enforceable penalties or enforcement procedures. Any penalty or enforcement impact is indirect and derives from how the Migration Regulations apply the designation created by this instrument.

The instrument is expressly framed as an exercise of power under paragraph 2.25A(1)(b) of the Migration Regulations 1994 (opening recital). Its legal effect is therefore parasitic on, and contingent upon, that primary regulation. The instrument neither amends the Migration Regulations nor inserts new text into them; it simply supplies the names of jurisdictions that are to be treated as “specified countries” for the purposes of that one paragraph. As such, the instrument’s interactions with other laws are mediated by the Migration Regulations rather than by any standalone cross-reference.

Direct interactions recorded in the instrument’s text:

• Replacement: the instrument repeals the prior specification instrument IMMI 13/161. The immediate legal interaction is that IMMI 13/161 ceases to be the operative list once this instrument commences (opening recital, subparagraph (b)).
• Commencement mechanics: because the instrument “commences on the day after registration” it interacts with the registration process under the legislative instruments regime; the timing of registration therefore affects when this instrument displaces the prior list and becomes the operative reference.

Indirect interactions that follow from its role as a specification:

• Any provision in the Migration Regulations or subordinate instruments that refers to the class of “specified countries” described by paragraph 2.25A(1)(b) will implicitly refer to this Schedule 1 list. That creates a downstream interaction between this schedule and whatever statutory outcomes, criteria or administrative processes are driven by that class in the Migration Regulations.
• The instrument does not reproduce the definitions or interpretive rules used by the Migration Regulations to determine when a person is to be treated as connected with a country, nor does it alter the operation of other Acts (for example, the Migration Act 1958 or other immigration-related statutes) directly. Any cross‑Act consequences therefore depend on the text of the Migration Regulations and other primary legislation.

The instrument does not identify or create inconsistency clauses, savings provisions, or transitional arrangements with other instruments. The explicit repeal of IMMI 13/161 is the only cross-instrument interaction stated. Implementers and advisers must therefore consult the Migration Regulations themselves to understand how the specified list in Schedule 1 flows through to substantive rights, criteria or disqualifications, and to identify any conflicts or overlapping references with other subordinate instruments.

The instrument contains a single express amendment action: the repeal of the prior specification instrument cited as “Migration Regulations 1994 - Specification of Countries - IMMI 13/161” (opening recital, subparagraph (b)). The instrument is dated 21 December 2023 and signed by the Minister, Andrew Giles. It further states that it “commences on the day after registration” (opening recital). There is no other amendment history recorded within the instrument text.

No other schedules, transitional amendments, saving clauses, or retrospective amendments are included. The instrument therefore stands as a standalone replacement of the earlier IMMI 13/161 specification from the day after registration. The instrument does not set out any staged implementation, no variant lists for different classes of visas, and no sunset clause. It also contains no explicit provision preserving decisions made under the earlier instrument; consequently, the previous instrument’s legal status is simply repealed as of the new instrument’s commencement.

Because the instrument is silent about amendment mechanisms beyond repeal of IMMI 13/161, any future changes to the specified list would require a further instrument made under the enabling paragraph in the Migration Regulations or an amendment to the Migration Regulations themselves. The instrument does not itself create delegated power for others to amend the schedule; the making power is exercised by the Minister in this instrument. The practical upshot is that the amendment history recorded in this instrument is limited: dated 21 December 2023, repeal of IMMI 13/161, and commencement day after registration. Any further amendment history must be sought in subsequent instruments or the registers that record legislative instruments after this one.

The text of this instrument contains no recital or annotation referring to any litigation, reviews, appeals, or case law. It does not record judicial or administrative challenges to its contents and does not cite any decisions. The instrument is a specification instrument; it does not contain rights, duties or sanctions in itself. Consequently, the instrument’s litigation footprint (as recorded within the instrument) is nil.

Because the instrument operates by reference to paragraph 2.25A(1)(b) of the Migration Regulations, any litigation or administrative review that might arise from the application of the Schedule 1 list would need to engage with the Migration Regulations and the Migration Act or other primary statutes, rather than this instrument itself. The instrument does not provide guidance on standing, grounds for review, or merits avenues; therefore, if affected parties seek judicial or merits review of decisions that turn on whether a person or country is captured by the “specified countries” classification, those challenges would need to base legal argument on the relevant provisions of the Migration Regulations, the Migration Act, administrative law doctrines, and any relevant policy or practice , none of which are reproduced or amended by this instrument.

In short, the instrument’s text contains no litigation history and makes no procedural provision for dispute resolution; any litigation history relevant to its practical effects will be external to the instrument and situated in the body of migration law and case law that applies paragraph 2.25A(1)(b).

The instrument is brief, but there are several practical details and potential pitfalls that implementers, advisers and affected parties should note, all grounded in the instrument text and Schedule 1:

1. Authoritative strings: the instrument specifies the countries “mentioned in Schedule 1” (opening recital). That means the exact textual form of each Schedule 1 entry is the operative identifier for the purposes of paragraph 2.25A(1)(b). Practical systems that perform exact string-matching or rely on coded country identifiers must map Schedule 1 entries to their internal classification tables. For instance, Schedule 1 contains entries such as “China, People's Republic of” and “Hong Kong Special Administrative Region of the People's Republic of China”; if an IT system expects the name “China” or “Hong Kong” in a different format, mapping is required. The instrument itself gives no alternative canonical identifiers or country codes.

2. Inclusion of unusual or non-uniform place-names: Schedule 1 includes a mixture of sovereign states, dependencies, territories and named entities. Examples in the schedule include “Macau Special Administrative Region of the People's Republic of China”, “Taiwan”, “Tibet”, and overseas territories such as “British Virgin Islands” and “Falkland Islands”. The presence of such entries means implementers need to review how the Migration Regulations’ factual connection test (not reproduced in this instrument) interacts with these varied place-names.

3. Australia included in the list: Schedule 1 includes “Australia” under the A heading. The instrument does not explain the significance of including the host state in a list used for the purposes of a Migration Regulations paragraph. Because the instrument does not define how a person is assessed against the list (for example, whether by nationality, citizenship or other tie), including Australia may have implications that require careful interpretation in the Migration Regulations context.

4. Formatting and typographical irregularities: the printed schedule shows some likely formatting anomalies (for example under O the line “Occupied Palestinian TerritoriesOman” appears as a single concatenated item). The instrument’s operative language ties the specification to the Schedule 1 text as printed. Administrators should verify the registered text as published and, if necessary, seek clarifying amendment or official correction where typographical errors could produce operational confusion.

5. Repeal of prior instrument: IMMI 13/161 is expressly repealed. Any procedures, guidance, or decisions made under that prior instrument may need to be checked against this list. The instrument contains no transitional provisions, so implementers should identify whether in-flight matters require administrative handling to avoid inconsistencies, even though the instrument itself does not prescribe a transition.

6. No definition of the triggering attribute: the instrument does not say whether the relevant factual tie to a Schedule 1 entry is nationality, citizenship, passport, residency, or place of birth. This ambiguity is not resolved by this instrument and necessitates cross-reference to the Migration Regulations and departmental guidance.

7. No penalties or enforcement detail: as the instrument contains no enforcement provisions, any sanctions or remedial routes must be sought elsewhere. Users should not expect this instrument to provide procedural or remedial clarity.

These “gotchas” are not statutory conclusions; they are practical cautions derived from the instrument’s text and the form of Schedule 1. Where a precise procedural or legal effect is required, the relevant text of the Migration Regulations and any departmental policy must be consulted.

Compliance with this instrument is procedural and limited. The instrument itself does not create new substantive obligations; it supplies Schedule 1 as the authoritative list for “the purposes of paragraph 2.25A(1)(b) of the Migration Regulations” (opening recital). Therefore, compliance steps flow from that narrow function:

1. Verify commencement: confirm the registration date of the instrument in the legislative instruments register. The instrument “commences on the day after registration” (opening recital). Until that commencement date, the prior specification (IMMI 13/161) will remain operative. Ensure casework and IT systems switch to Schedule 1 only from the commencement date.

2. Use Schedule 1 as the authoritative list: where paragraph 2.25A(1)(b) of the Migration Regulations requires reference to “specified countries”, use the place-names exactly as printed in Schedule 1 unless and until a correcting instrument or amendment is published. Because the instrument’s operative text is the Schedule, reliance on alternate or approximate lists risks procedural error.

3. Map names to operational identifiers: implementers should map the textual Schedule 1 entries to whatever internal country coding, nationality or passport fields are used in case-management systems to avoid misclassification. Pay special attention to composite entries and non-standard naming conventions in the Schedule (for example “China, People's Republic of” versus “People's Republic of China”, or entries for territories and special administrative regions).

4. Address typographical anomalies: check the official registered instrument for any typographical errors and reconcile them with published versions. For example, where the printed Schedule shows concatenations or spacing issues (e.g. “Occupied Palestinian TerritoriesOman”), confirm the intended entries by reference to the registered text. If ambiguity remains, seek an official correction or ministerial clarification prior to automated implementation.

5. Check the attribute used by paragraph 2.25A(1)(b): because this instrument does not define how to determine whether a person is “of” or “from” a listed jurisdiction, ensure that the attribute used (nationality, citizenship, passport, place of birth, habitual residence, or otherwise) aligns with the Migration Regulations’ requirements. Consult the Migration Regulations and departmental policy for that operational rule.

6. Update guidance and training: update decision-making guidance, training materials and checklists to reflect that IMMI 13/161 has been repealed and Schedule 1 under LIN 23/071 is the current specification from commencement. Where decisions under paragraph 2.25A(1)(b) previously relied on the repealed instrument, re-evaluate any in-flight cases as required by departmental policy.

7. Document audit trails: retain administrative logs showing when the transition from the old specification to the new Schedule 1 took effect for each case, so that any downstream review or administrative audit can trace which specification was in use at the relevant time.

8. Legal advice: where an applicant or decision hinges on borderline classification issues (for example obscure entries, or where the factual tie to a place-name is not straightforward), seek legal advice that references both this instrument and the Migration Regulations. Because this instrument simply provides the list, legal analysis will require integrating the Migration Regulations’ text.

These compliance steps follow strictly from the instrument’s narrow role. The instrument does not itself authorise alternative processes, create procedural exceptions, or establish transitional rules; compliance therefore requires attention to the Migration Regulations and to departmental implementation practices.