An unauthorised maritime arrival (UMA) is defined in s 5AA of the Migration Act 1958 as a person who, on or after 13 August 2012, entered Australia by sea at an excised offshore place or at any Australian territory (or who has been brought to Australia as a transitory person from offshore processing), without a valid visa. The UMA provisions were introduced by the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 and consolidated the earlier "offshore entry person" regime.

UMAs face three key legal disabilities under the Migration Act:

1. Section 46A bar: A UMA may not apply for any visa while in Australia unless the Minister personally lifts the bar
2. Offshore processing: A UMA may be taken from Australia to a regional processing country under s 198AD, where their protection claims are assessed outside the Australian migration system
3. Family sponsorship bar: A UMA who arrived on or after 13 August 2012 cannot propose family members for family class visas under Australia's humanitarian programme

Section 5AA — definition of UMA: A person is a UMA if they entered Australia by sea at an excised offshore place or any other Australian territory (i.e., not through a regular port of entry via air), arrived on or after 13 August 2012, and did not hold a valid visa at the time of entry. The definition includes persons brought to Australia as part of offshore processing arrangements.

Section 42(1A) — bar on entering as unlawful non-citizen: Section 42(1A) provides that a UMA becomes an unlawful non-citizen on entry — they are not entitled to the protections available to persons who entered lawfully before their visa was cancelled or expired.

Section 46A — bar on visa applications: A UMA in Australia may not make a valid application for a visa unless the Minister personally determines in writing that it is in the public interest for the UMA to be permitted to apply (s 46A(2)). This is a personal ministerial power — it cannot be delegated. In practice, the Minister's s 46A(2) power has been used to allow certain cohorts of long-term UMAs to apply for visas, including the RoS pathway.

Section 198AD — offshore processing: Section 198AD requires an officer to take a UMA (who has not been granted a visa and has not had a valid protection claim assessed in Australia) to a regional processing country as soon as reasonably practicable. The regional processing countries (Papua New Guinea and Nauru at various times) assessed protection claims under their own frameworks. The offshore processing regime has been the subject of substantial judicial and parliamentary scrutiny.

Section 198AHA — temporary stay: Section 198AHA allows UMAs to be brought to Australia temporarily from offshore processing (for example, for medical treatment) while remaining subject to the s 46A bar and the obligation to be taken offshore again.

Section 197D — Resolution of Status: Section 197D, as amended from 13 February 2023, provides a mechanism for long-term UMAs who are in Australia and have a protection finding (or are otherwise in an uncertain status) to have their situation resolved. Under the Resolution of Status (RoS) pathway, eligible UMAs may be granted the opportunity to apply for a visa — typically the Subclass 851 Resolution of Status (Permanent) visa — which provides a pathway to permanent residence for those who have been in Australia for an extended period under temporary protection.

Protection assessment in Australia — TPV and SHEV: Where a UMA cannot be removed offshore (for example, because offshore processing arrangements have ended or because the person cannot be safely returned to any third country), and where the person establishes a protection claim under Australian law, they may be granted a Temporary Protection Visa (TPV — Subclass 785) or a Safe Haven Enterprise Visa (SHEV — Subclass 790). These visas were re-introduced in 2014 for UMAs who cannot be removed and have protection findings. They do not provide a direct pathway to permanent residence except through the SHEV regional employment/study pathway and subsequent permanent visa applications.

Resolution of Status (RoS) pathway — from 13 February 2023: The Australian Government announced in 2023 that long-term UMAs who had been living in Australia (many on TPVs or SHEVs for a decade or more) would be offered a pathway to permanent residence. The RoS pathway involves the Minister lifting the s 46A bar for eligible UMAs and allowing them to apply for the Subclass 851 Resolution of Status (Permanent) visa. Eligibility is assessed against health and character requirements.

Turn-back operations: In addition to offshore processing, the Australian Government's maritime border policy has included the operational interception and turn-back of vessels carrying UMAs before they reach Australian territory (Operation Sovereign Borders). These operations are conducted under the Australian Border Force Act 2015 and associated instruments and operate at the boundary of Australia's maritime jurisdiction. The legal framework governing these operations has been the subject of ongoing scrutiny but has been upheld by Australian courts.

The UMA provisions are among the most contested areas of Australian immigration law. The High Court of Australia has upheld the offshore processing and s 46A bar provisions in a series of decisions — most significantly in Plaintiff S157/2002 v Commonwealth (2003) (which confirmed that s 474 does not exclude judicial review of jurisdictional error) and Plaintiff M70/2011 v Minister for Immigration (2011) (which addressed the offshore processing framework). More recent jurisprudence has continued to develop the boundaries of executive power in this area.

The distinction between UMAs who arrived before 13 August 2012 and those who arrived on or after that date remains significant — persons who arrived before that date may have been able to apply for protection visas under the ordinary Subclass 866 framework.