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Retrospectivity: Unspent conviction

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oshoo15
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Posts: 14
Joined: Sun Jun 07, 2009 4:49 am

Retrospectivity: Unspent conviction

Post by oshoo15 » Sun Jun 07, 2009 5:20 am

Please give your opinions on this issue (I am an ILR holder).

April 2007 - Drink-drive conviction/court fine
Under old rules of "clear period", naturalisation application could be made April 2009.

New rules from Jan 2008 imply naturalisation can only be made April 2012.

Do you think I can rely on Article 7 of Convention Law successfully, as this change is secondary legislation?
Please bear in mind that rules could be changed March 2012 to push my eligibility even further.

Thanks.


Relevant section of Human Rights Law reproduced in emboldened below.

Article 7: NO PUNISHMENT WITHOUT LAW

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.

NOR SHALL A HEAVIER PENALTY BE IMPOSED THAN THE ONE THAT WAS APPLICABLE AT THE TIME THE CRIMINAL OFFENCE WAS COMMITTED.

Jalexa
Member
Posts: 157
Joined: Fri Mar 27, 2009 11:42 pm

Re: Retrospectivity: Unspent conviction

Post by Jalexa » Sun Jun 07, 2009 1:24 pm

oshoo15 wrote:Please give your opinions on this issue (I am an ILR holder).

April 2007 - Drink-drive conviction/court fine
Under old rules of "clear period", naturalisation application could be made April 2009.

New rules from Jan 2008 imply naturalisation can only be made April 2012.

Do you think I can rely on Article 7 of Convention Law successfully, as this change is secondary legislation?
Please bear in mind that rules could be changed March 2012 to push my eligibility even further.

Thanks.


Relevant section of Human Rights Law reproduced in emboldened below.

Article 7: NO PUNISHMENT WITHOUT LAW

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.

NOR SHALL A HEAVIER PENALTY BE IMPOSED THAN THE ONE THAT WAS APPLICABLE AT THE TIME THE CRIMINAL OFFENCE WAS COMMITTED.
You broke the law, you were punished.

The fine you were given must have been the penalty applicable on the date you committed the offence. So, your punishment was compatible with Article 7.

So I can't see how you think that you can rely on Article 7 in any way whatsoever.

oshoo15
Newly Registered
Posts: 14
Joined: Sun Jun 07, 2009 4:49 am

Post by oshoo15 » Sun Jun 07, 2009 4:59 pm

Thanks for your prompt response.

Obviously, I am not refering to the punishment meted out by the courts. I dont think this has changed in anyway.

The change in "penalty" given by the Home Office with regards to naturalisation applications (whilst having an unspent conviction) is what I am trying to clarify.

Currently, I can apply for naturalisation April 2012, providing rules remain as it is. In theory, it could change so that I am now eligible 2015, 2020, 2025 etc.

I am not trying to get out of punishment for my stupidity. I was foolish, did the crime and thought I had done the time. I dont think there should be jusification in the punishment/consequences of my mistake never ending.

Jalexa
Member
Posts: 157
Joined: Fri Mar 27, 2009 11:42 pm

Post by Jalexa » Sun Jun 07, 2009 7:52 pm

oshoo15 wrote:Thanks for your prompt response.

Obviously, I am not refering to the punishment meted out by the courts. I dont think this has changed in anyway.

The change in "penalty" given by the Home Office with regards to naturalisation applications (whilst having an unspent conviction) is what I am trying to clarify.

Currently, I can apply for naturalisation April 2012, providing rules remain as it is. In theory, it could change so that I am now eligible 2015, 2020, 2025 etc.

I am not trying to get out of punishment for my stupidity. I was foolish, did the crime and thought I had done the time. I dont think there should be jusification in the punishment/consequences of my mistake never ending.
The word "penalty" refers just to the punishment given.

Fictional example:

1. Up to 31st December 2008 the penalty for Drink Driving is a 1 yr driving ban

2. You get caught drink driving 31st December 2008

3. From 1st Jan 2009 onwards the "penalty" is 2 yrs ban + 18months prison.

4. You go to court 5th Feb 2009.

5. Your 'penalty' must be maximum 1 yr driving ban only.


There are consequences for breaking the law - and I know that you did your time etc. etc. - but Article 7 refers to the example I just gave and not every negative situation that may arise as a result of a spent criminal conviction.

Bottom Line: Your issue has nothing whatsoever to do with Article 7.

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