Visa Refusal on Deception & Criminal Conviction

I was given an absolute discharge for an assault charge in Scotland. And my criminal solicitor in Scotland advised me that this is not a conviction in Scotland. “Discharging absolutely shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of laying it before a court as a previous conviction in subsequent proceedings for another offence”
He printed me the details in the below links for my information
http://www.legislation.gov.uk/ukpga/199 ... 20scotland

My employer is fully aware of my situation and had sponsored me for my work permit visa and employed an immigration solicitor to do this.
The immigration barrister after analysis on my case also advised me that it’s not a conviction as it’s an absolute discharge in Scotland. And they had advised me it’s not a Yes for the criminal conviction question in the visa application.

But unfortunately I was refused visa and banned for entry for next 10 years under 320 (7 A) for deception and 320 (18 A) for criminal conviction recorded within 12 months from the date of application.
I’m worried because I didn't deceive I went with the advice from my criminal and immigration solicitor, as an expert advice.
We are going for an administrative review soon where my solicitors hopefully will provide as much as a detail as possible on why they had advised me it’s not a conviction.

I’m very much worried about the outcome of this review. My barrister has full confidence that the 10 year ban will be overturned as I didn't deceive in first place. Although it looks like one from the visa officers point of view.Obviously I need to prove my case with the necessary documents from my solicitor.
Can anyone advice me on what will be the probability I will get the refusal overturned. i.e both the 10 years ban and the visa refusal on criminal background?

With respect to the criminal conviction, first of all I have to prove it’s not a criminal record according to Scottish law.

But by the meantime I did go through lots of links in the UKBA website with respect to criminal conviction; it says refusing on criminal record (which is within last 12 months) is a discretionary refusal. But some simply says it’s a ground for refusal (doesn't specify if it’s mandatory or discretionary). If it’s discretionary what are the things that the immigration officer consider to refuse such visa?

Anyone who can help me with my questions?

Thanks in Advance

Paragraph 320 (1-7) are grounds on which refusal of entry clearance is mandatory.

Paragraph 320 (8-19) are grounds on which refusal of entry clearance is
discretionary.

Thus would only be a mandatory refusal if:

320(2) wrote:(d) has been convicted of an offence for which they have been sentenced to a period of
imprisonment of less than 12 months, unless a period of 5 years has passed since the
end of the sentence.

They are arguing you should be refused under 320(7A) for deception.

Given that it was no a custodial sentence it wouldn't have been a mandatory refusal. However, as section 247(1) of the Criminal Procedure (Scotland) Act 1995 stipulates:

247(1) wrote:Subject to the following provisions of this section, a conviction of an offence for which an order is made placing the offender on probation or discharging him absolutely shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of laying it before a court as a previous conviction in subsequent proceedings for another offence.

You should ask for a reconsideration and give the relevant legislation quote as above. Explain therefore, you were not 'convicted' for the purpose of the immigration application and therefore, did not need to disclose it. Although, the ECO/ECM could still refuse (discretionary) under:

320 wrote:(18A) within the 12 months prior to the date on which the application is decided, the person has
been convicted of or admitted an offence for which they received a non-custodial sentence or
other out of court disposal that is recorded on their criminal record;

(18B) in the view of the Secretary of State:

(a) the person's offending has caused serious harm; or

(b) the person is a persistent offender who shows a particular disregard for the law.

Note that for 320(18A) it need not be a conviction rather, admitting the offence would suffice (generally seen when someone accepts a police caution). Although, I would not think you would satisfy 18B and it was not, arguably, 'serious harm'. Did your legal advisor explain this to you?

Thank you so much for taking the time reply my questions. It's much appreciated !

320(18A) it need not be a conviction rather, admitting the offence would suffice (generally seen when someone accepts a police caution). Did your legal advisor explain this to you?

No I wasn't advised on this. I now understand that there is still a probability for rejection under 320 (18 A)
When comes to discretionary refusal what are the things they would consider for this? or is it just the decision of that particular caseworker?

Up to the discretion of the caseworker and where applicable the ECM.

Thanks again !

Hi,

Me too have a query on the caution. I had received a police caution in Mar 2009 for a shoplifting offence and i have applied for UK visa (PSW in Sep 2009 and Tier 2 general in Jun 2011) and both time, my application was successful. I am up for tier 2 renewal soon in June2014, would my caution be a reason for a visa refusal as the immigration rules have changed since 2012 and this is the first time i am applying after the change of rules. Also, provided i get Tier 2 extension approved, i will be eligible for ILR in Jun 2016, does anyone of you immigration experts think, it would be a matter of concern?

Any help would be greatly appreciated?

Thanks

Most (if not all) immigration applications require the declaration of any cautions. Given that 24 months have lapsed it should not be a mandatory general ground for refusal.

Thanks Amber for the reply... it made me feel a bit confident... do you think it still stands at a discretionary grounds of refusal? i am a bit nervous especially after Dec 2012 change of rules

I got my visa before 2 weeks.

Thanks !