Drink-driving and British Citizenship

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Drink-driving and British Citizenship

Postby msx2013 » Thu Jan 17, 2013 11:52 pm

I'm looking for some advise and I'm sorry, if you have seen this in two other topics.

I was on a 5-year work permit from 10/2004 to 10/2009. Call it fate, bad luck or stupidity - I was done for drink-driving the night before my employer's agent was making an ILR application (in person) with the Home Office. To keep things open and honest, I ensured the Home Office was made aware of the offense, via my employers agent. The Home Office, instead of making the decision for my ILR on the same-day, held my passport for about two months.

In about a weeks time, I was convicted for drink-driving - banned for 14 months and fined £500. I kept the Home Office informed of the conviction and eventually, without much hassle I was granted ILR by end November 2009 (I was lucky + legislation allowed then).

I have since been waiting for my convictions to be spent under ROA to apply for British Citizenship (i.e. apply after November 2014). The new guidelines document (from Dec 2012) now does not account for ROA - http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/nationalityinstructions/nichapter18/ch18annexd?view=Binary

Am I right in assuming that since the fine was a non-custodial sentence and since it occurred 3+ years ago, I should be OK to apply now? Or should I be worried that my 'reckless' offense will not normally be disregarded?
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Postby Smam » Fri Jan 18, 2013 1:32 am

Hi

I am in a pretty similar situation like yours so I am really intersted to see your result for your application of your BC.

I must say that you were extremely lucky that you got your ILR cause the rules were so relaxed back in the year 2009 when you got your ILR well that's all I can wish for you that you'll go lucky this time as well that's all i can say to you and that's all I can wish for you, but unfortunately that's not what the new rules are saying at the moment which came in to being on the 09th Jan 2013 under the changes to good character requirements.

Kindly keep us updated once you'll apply for your BC and hear any thing back regarding your BC from the UKBA.

Good luck for your BC.
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Postby msx2013 » Fri Jan 18, 2013 1:43 am

Smam,

Thanks for the support but pls note, I haven't yet applied for BC. I was going to wait until Nov 2014 for my conviction (fine) to be spent (5 yrs under ROA).

My first post is a question - basically, asking if I can now apply for BC, since it's been 3 yrs since conviction - I believe the new changes allow for that?
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Postby skstorm » Fri Jan 18, 2013 8:06 am

Hello, my husband was convicted in 2009 for being on a mobile phone and got fine and 3 points. He has just applied for BC on the basis it's over 3 years, I am happy to let you know how he goes on if you like?
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Postby msx2013 » Fri Jan 18, 2013 8:22 pm

Skstorm,

Thanks for your offer to help - I'll of course be happy to hear of your husband's outcome. All the best.

If I may, could I please check if your husband got the fine in a court? If not, I don't think it's classed as a conviction - so may be slightly better than my situation.
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Postby skstorm » Fri Jan 18, 2013 9:16 pm

Yes he got his fine in court along with CU80 and LC20 points and fine we are keeping fingers crossed
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Postby msx2013 » Fri Jan 18, 2013 9:54 pm

skstorm wrote:Yes he got his fine in court along with CU80 and LC20 points and fine we are keeping fingers crossed


Thanks for confirming your husband's situation - I do hope he get through. I'm in the process of filling out the BC forms now - I might get it in the post sometime next week.

When did your husband make the application and was it a postal application?
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Postby skstorm » Fri Jan 18, 2013 11:10 pm

we applied early this week via NCS as we possibly need the passports depending on how long it takes, so just in the waiting game now :-(
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Postby Smam » Sat Jan 19, 2013 12:33 am

skstorm wrote:we applied early this week via NCS as we possibly need the passports depending on how long it takes, so just in the waiting game now :-(


Hi Skstorm,

Well thanks a lot for keeping us updated on the forum regarding your husband situation.

Let me ask one thing here what difference does it make if you gets the points through court or you get it from the DVLA.

Let me tell you one thing that I've got 6 points from the DVLA under the code IN10 or some thing like that as I've given a producer from the Met Police to produce my license at the nearest police station and the police officer assured me that there's no involvement of any courts in my case scenario. I would like to know what difference will it make for me at the time of my BC application. If you really ask me to the best of my understanding there's no difference at all what so ever.

I wish and I pray for Skstorm husband that your husband will get BC good luck for your husband application for BC.

Please kindly keep us updated on the forum from your husbands out come.

Good luck to every one who're applying for their BC.
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Postby msx2013 » Sat Jan 19, 2013 10:48 am

Smam wrote:
Let me ask one thing here what difference does it make if you gets the points through court or you get it from the DVLA.


If you get your points and fine from DVLA, it is not a conviction and there is no record in your criminal check sheets.

If you get your points and fine in court, it is a conviction and you are classed as an offender. These will come up in background checks, etc and is subjected to ROA or the new LASPO bill.
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Postby skymoon » Sat Jan 19, 2013 11:18 am

Dear Smam, i have told you that same happened with me and i paid Fixed Penalty Notice fine and submit my licence to police station for endoresement of points. FPN is not a conviction if you paid and not went to court where if you got fine then it is called conviction. My CRB and other searches are OK, there is no record of FPN. I hope as Skstorm and i have applied for my BC, you should go ahead and apply BC. Good luck
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Postby Smam » Sat Jan 19, 2013 6:23 pm

skymoon wrote:Dear Smam, i have told you that same happened with me and i paid Fixed Penalty Notice fine and submit my licence to police station for endoresement of points. FPN is not a conviction if you paid and not went to court where if you got fine then it is called conviction. My CRB and other searches are OK, there is no record of FPN. I hope as Skstorm and i have applied for my BC, you should go ahead and apply BC. Good luck


Hi brother SKymoon and msx2013,

Many thanks for your extremely kind reply to my querry.

@msx2013 many thanks for your extremely help ful and very clear answer to my question.

Good luck to every one for their BC application.
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Postby Smam » Sun Jan 20, 2013 4:33 pm

Hi

I would like ask one thing here that I've enquired about this from the Police station and they further advised me that I can appeal in the court against my FPN if I want to use the option for appealing against the FPN and will not get a criminal coviction or any thing like that its just that every one has got the right of appeal as I've already expalined my scenario that I can appeal against it. The police officers explained to me that it'll never ever be a criminal conviction if I appeal against my FPN in the court it's given me the option of appealing against it as my right to appeal against it and the police officer further told me that it has got nothing to do with the Criminal conviction its a Traffic offense not a Criminal offense.

Any one has got any knowledge if I appeal aginst my FPN in the court and if I loose my case will I get the criminal conviction ? and will it come in my CRB ?

Please help me please any one who has any knowledge of this question.

Many thanks and waiting for your useful replies.
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Postby skstorm » Sun Jan 20, 2013 9:45 pm

Hello, if you loose it is likely that the court will issue the same penalty as the FPN (in my husbands case for use of a mobile phone it was £60 fine and 3 points). It is my understanding that once the fine is issued in Court it has a rehabilitaion period with it. Under new rules UKBA are saying 3 years and it will effect when you can apply. They seem to be extremely strict on driving convictions. If I got a FPN I would just pay it and avoid it going to court. NCS asked my husband if he had more than one FPN in the last 12 months and as we could answer no it was ok. Once you have been to court there is always a record of some kind.

I'm pretty sure if this is wrong someone will correct it for me.
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Postby Smam » Sun Jan 20, 2013 10:52 pm

skstorm wrote:Hello, if you loose it is likely that the court will issue the same penalty as the FPN (in my husbands case for use of a mobile phone it was £60 fine and 3 points). It is my understanding that once the fine is issued in Court it has a rehabilitaion period with it. Under new rules UKBA are saying 3 years and it will effect when you can apply. They seem to be extremely strict on driving convictions. If I got a FPN I would just pay it and avoid it going to court. NCS asked my husband if he had more than one FPN in the last 12 months and as we could answer no it was ok. Once you have been to court there is always a record of some kind.

I'm pretty sure if this is wrong someone will correct it for me.


Hi

Many thanks for your kind reply. But that's not what the police has told me they said to me that I can appeal against it means that I am not ignoring the FPN but its just that I've got the right to appeal against it and it will make no difference at all what so ever even if I loose it I'll get the same FPN and points on my license and might be the case that I've to pay court charges as well.

This is the 1st time it happens to me and I already have a fully comprehensive insurance. The police officer guidede me that I've got strong grounds to appeal against it and it depends on the judge that how the judge would like to deal with it I haven't got any other points on my license and never ever be in any kind of trouble with the police.

So I've decided to appeal in the court lets see how it goes. I've already made up mind now to bare the consequences that's all it is. I've to die why not give it a fight before taking the death so that's all it is.

Many thanks for your useful replies.
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Postby genorp » Mon Jan 21, 2013 1:46 pm

To chime in on the OP's post.....

The new guidance is here:
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

ROA is no longer an aspect for immigration based cases. "Spent" is no longer taken into consideration. They have their own criteria in the above document.


From the 1 October 2012, certain immigration and nationality decisions were exempt from s4 of the Rehabilitation of Offenders Act 1974. As a result, the concept of a conviction becoming "spent" no longer applies when making an assessment of good character.


Also note section 3.3.2:

3.3.2 Caseworkers should not normally disregard any conviction that falls into the following categories irrespective of the severity of the sentence imposed:

e. Offences which would constitute “recklessness” – for example, drink-driving, excessive speeding, driving without tax/insurance or whilst using a mobile phone. (NB Caseworkers should remember that fixed penalty notices do not constitute offences – see paragraph 3.5.2).


I'm not passing judgement, but you should be aware of the current rules.
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Postby Smam » Mon Jan 21, 2013 2:22 pm

Hi

Thanks a lot for your kind reply. I've decided that I'll appeal for my FPN. I've been told that even if I loose it in the court I'll still have to pay the FPN and gets the points on my license that's all it is.

I haven't got a clue what an ROA means.

There's a lot of ambiguity in this sentence.

Quote:
3.3.2 Caseworkers should not normally disregard any conviction that falls into the following categories irrespective of the severity of the sentence imposed:

e. Offences which would constitute “recklessness” – for example, drink-driving, excessive speeding, driving without tax/insurance or whilst using a mobile phone. (NB Caseworkers should remember that fixed penalty notices do not constitute offences – see paragraph 3.5.2).


I also have recieved a FPN and will get 6 points on my license for driving with out insurance so I dont know where I'll be standing in my case its just so confusing for me.

Many thanks and waiting for your useful replies.
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Postby genorp » Mon Jan 21, 2013 4:24 pm

My reply was more in regards to msx2013's drink driving conviction.
Smam, you have an FPN. FPNs are not considered convictions. If you appeal it then are found guilty in court, that will be a conviction. It may be safer to just pay the FPN so that it falls under the:
Caseworkers should remember that fixed penalty notices do not constitute offences

rather than the conviction aspect which would cause you more problems.

PS, ROA is the Rehabilitation of Offenders Act of 1974 which until late 2012 had relevance on immigration related applications because it meant you were allowed to not mention "spent" convictions according to the schedule in the Act. However, now it has no bearing and "spent" convictions must be declared and may still be held against you.
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Postby skstorm » Mon Jan 21, 2013 9:20 pm

I agree with Genorp
I think it would be safer to take the FPN as there is far less consequenes. Citizenship disreguard FPN as long as there is no more than 1 in the last 12 months.
However the decision is entirely yours and if you feel you want to fight and take whatever the consequences are good or bad then I wish you the best of luck.
If my husband were in your shoes I would be advising him to pay the FPN to a ensure it didnt escalate.
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Postby Smam » Mon Jan 21, 2013 10:32 pm

Hi

Many thanks for your useful replies. I think I havent got any more options left now I'll take the consequences what ever it'll come to now as I already have requested for an appeal.

The Police officer reassured me that even if I loose it'll stay as a FPN and not a conviction and I've more chances to win it as I already have the fully comprehensive insurance and the normal insurance law is that if you're fully comprehensive insured you can also drive other vehicles as well.

This is the first time it happens to me I would like to take my chances requesting the judge lets see how it goes now.

The Police officers reassured many time that it'll stay as FPN even if I loose.

Well thanks a lot for your kind replies once again.
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