Urgent Help needed! Procurator Fiscal Warning - Scotland

[Rikjavik]

Hi everyone,

I'm applying for my wife's naturalization based on section 6(2) (Spouse of British citizen) as I'm now British.

My wife is on ILR and about 1.5 year ago she was alleged for shoplifting in a retail store in Scotland. It was simply an oversight but no legal proceedings took place. She has no history or any sort of convictions or warnings in UK or any other county.

Few weeks later, there was a letter (warning) from Crown Court Procurator Fiscal with no fines or penalty but asking to accept the warning (which means we don't need to reply back to the letter to accept the warning).

Letter states "..The warning is not a conviction and shall not be recorded as one. Information about this warning however be recorded on the Scottish Criminal History System (SCHS) for two years".

Two years have not elapsed since the incident.

Given the above situation could someone please help me with the following questions:

1) Is my wife eligible for Naturalization? or do we need to wait.

AND

The following question on the application form - what should be the answer?

3.13 Have you ever engaged in any other activities which might indicate that you may not be
considered a person of good character?

3.5 Have you received any cautions (simple or conditional), warnings or reprimands in the UK
or any other country?

3.1 Have you been convicted of any criminal offence in the UK or any other country?
Yes go to question 3.2 No go to question 3.3


Your help will be highly appreciated.

Thanks

[noajthan]

Hi everyone,

I'm applying for my wife's naturalization based on section 6(2) (Spouse of British citizen) as I'm now British.

My wife is on ILR and about 1.5 year ago she was alleged for shoplifting in a retail store in Scotland. It was simply an oversight but no legal proceedings took place. She has no history or any sort of convictions or warnings in UK or any other county.

Few weeks later, there was a letter (warning) from Crown Court Procurator Fiscal with no fines or penalty but asking to accept the warning (which means we don't need to reply back to the letter to accept the warning).

Letter states "..The warning is not a conviction and shall not be recorded as one. Information about this warning however be recorded on the Scottish Criminal History System (SCHS) for two years".

Two years have not elapsed since the incident.

Given the above situation could someone please help me with the following questions:

...


Your help will be highly appreciated.

Thanks

To get in the mind of the caseworker weighing up & assessing your wife's case see HO guidance on 'good character':
https://www.gov.uk/government/uploads/s ... _D_v02.pdf
- ref sections 2.3 (Scottish law) & 3.3 (warnings...)

If in doubt declare the event on the form.
This demonstrates honesty.
It will obviously show up when cw crosschecks her/his databanks anyway.

Suggestions:
3.13 No

3.5 Yes

3.1 No

If a one off event and if no events in the past 12 months then it should not be a deal breaker.
If deemed of no consequence the caseworker will disregard it.

On the other hand, if you are extremely risk-averse just hold off applying for 6 months or so.

[Rikjavik]

Thanks Noajthan for your swift assistance.

This is interesting - from Good Character guidance.

3.3 Cautions, Warnings and Reprimands
A caution (simple or conditional), warning or reprimand are all examples of an “out of
court disposal that are recorded on a person’s criminal record” (i.e. line 4 in Table
2.1).
Even where a person does not have a caution, warning or reprimand within the last
three years, the decision maker may still refuse an application if the person has
received multiple disposals of this kind that show a pattern of offending.

As per above, the warning letter states it's not a conviction. So it won't be on her criminal record.

So based on above, do you think 'Yes' to this question (3.5) below is only applicable where the incident is recorded on one's criminal record?

3.5 Have you received any cautions (simple or conditional), warnings or reprimands in the UK
or any other country?

Also, in the guidance they have mentioned that Scottish criminal system is different than England somehow:

2.3.3 Cautions
A caution in Scotland is entirely different from that in England and Wales. In
Scotland, it is a sum of money or a bond that has to be deposited with the court as
“caution” for good behaviour. The sum or bond can be forfeited if there is further
offending.
A Scottish caution will be treated as a “non-custodial offence or other out of court
disposal that is recorded on a person’s criminal record” (i.e. line 4 in Table 2.1).

I'm under the impression that Procurator Fiscal Warning is just a Warning and not a Caution. Because I simply don't know the difference.


2.3.4 Procurator Fiscal Fines
Where an alleged offence is reported to the Procurator Fiscal, they may – in certain
circumstances – offer to have the allegation dealt with outside of court and without
getting a criminal conviction.
The offer will allow the alleged offender to pay a sum of money as a “fiscal fine” or as
compensation to someone affected by the alleged offence. If the offender agrees to
pay the fine, they will not be prosecuted. Fiscal fines are not convictions

Guidance doesn't really tell the consequences of one time Procurator Fiscal Warning

Please note that the Fiscal Warning was disclosed at the time of ILR, ILR granted without issues. But the difference is there was not Good Character Requirement as such at that time.

So after reading the above from guidance:

1) I don't see how it would be different than applying now or 6 months later. Caseworker would still assess based on 'persistent offender' which they can do now as there is no such incident in last 12 months or even before this warning?

2) What if we apply now and get a rejection - would rejection in this case impose a ban for applying further e.g 3 years etc?

Your response will be highly appreciated.

Thanks.

[noajthan]

Thanks Noajthan for your swift assistance.

This is interesting - from Good Character guidance.

...

Please note that the Fiscal Warning was disclosed at the time of ILR, ILR granted without issues. But the difference is there was not Good Character Requirement as such at that time.

So after reading the above from guidance:

1) I don't see how it would be different than applying now or 6 months later. Caseworker would still assess based on 'persistent offender' which they can do now as there is no such incident in last 12 months or even before this warning?

2) What if we apply now and get a rejection - would rejection in this case impose a ban for applying further e.g 3 years etc?

Your response will be highly appreciated.

Thanks.

The point of waiting 6 months is for it to fall off the Scottish SCHS register you mentioned above.
If in doubt you should still declare it.

Personally I would still answer Yes to 3.5
It's surely better to declare it and have caseworker ignore it than have it work the other way around.

A refusal will likely result in a 10-year ban.

[Rikjavik]

Thanks noajthan for your response.

Few more questions arose to my mind.

Although, by all means we will declare the warning on the application because not disclosing this material fact would result in worst consequences.

But as you said refusal will result in a 10 year ban. I thought 10 year ban is for deception cases (320 B) or where the conviction/crime cannot be disregarded due to public interest.

Are you saying in our case, where we have disclosed the warning, the refusal will still result in 10 year ban?

If not, what is the threshold of imposing a ban on this case? Could you please point to a document where ban could be impose for 10 years on a petty crime?

[noajthan]

Thanks noajthan for your response.

Few more questions arose to my mind.

Although, by all means we will declare the warning on the application because not disclosing this material fact would result in worst consequences.

But as you said refusal will result in a 10 year ban. I thought 10 year ban is for deception cases (320 B) or where the conviction/crime cannot be disregarded due to public interest.

Are you saying in our case, where we have disclosed the warning, the refusal will still result in 10 year ban?

If not, what is the threshold of imposing a ban on this case? Could you please point to a document where ban could be impose for 10 years on a petty crime?

No, disclosing the warning will not result in 10-year ban. The warning will be assessed on its merits.
Nor will honest mistakes in the form result in a ban.

For full details refer to HO guidance on these vital matters regarding 'good character':
https://www.gov.uk/government/uploads/s ... _D_v02.pdf
- for example see section 8.3 (page 24) regarding possible consequence & outcomes.

[Rikjavik]

I forgot to post the response on this. I just stumbled across this post again and thought to post the outcome as it may help others. Its been couple of years but it might still help someone.

Outcome:
My wife received the Naturalization without any issue. We answered No to the questions asked on the forum.

[Alboz]

Hi Rikjavik,

just to confirm:

You replied "NO" to the Procurator Fiscal warning question even if 2 years had not passed and still had no problems?

I've got the same problem with my wife and in this case 3 years had passed. I also made a request to see if there is any record about her in the Scottish criminal history system and Police national computer. The result is negative, no information is held on her behalf.

However I'm still worried they still keep that information somewhere and might still consider a "NO" answer as trying to deceive them and refuse an application for Permanent Residence.

Any advice? Anyone else had this issue before?