British Citizenship- Good Character

Folks,

As most of you must know after 13 Dec 2012 the Rehabilitation of Offenders Act 1974 is no longer applicable and it is not relevant if a sentence is spent or unspent.

The Border Agency has published their own thresholds and guidelines. There is a senior anamoly in the guidance issued. The grey area relates to suspended sentences on which the guidance is silent.

A suspended sentence (custody minus) is one where though a Magistrates court imposed a sentence of upto 6months could choose to suspend it for upto 2 years and impose requirements like attending courses, unpaid work,supervision.

On the successful completion of this the penalty is discharged though the record remained.

Under the Rehabilitation of Offenders Act 1974 a suspended sentence was deemed to be on par with custodial sentences for the purpose of rehabilitation and had a 7 year unspent period.

So what chance does someone with a suspended sentence who completed all his requirements and the penalty was waived and has been free from any trouble for 3 years stand in applying for British Residency?

Also under the LASPO Act 2012, which is likely to come into effect in a few months, new thresholds have been defined for suspended sentences which have lowered the rehabilitation periods significantly , even lower than the 3 year threshold announced by the Border Agency.

As things stand people whose sentences have become spent in 2 and a half years have to wait for another 6 months as per the rules announced by the Border Agency.

This has opened the prospects of violation of legitimate expectation and human rights of uprooted migrants as any deal which is worse off than what the law of the land offers is in itself a travesty of all norms.

All informed comments will be appreciated.
VR

PS: It should also be noted there is no automatic right of appeal. When this area has been one for significant confusion, how the case workers will interpret this is a serious concern area.

VR wrote:Folks,

As most of you must know after 13 Dec 2012 the Rehabilitation of Offenders Act 1974 is no longer applicable and it is not relevant if a sentence is spent or unspent.

The Border Agency has published their own thresholds and guidelines. There is a senior anamoly in the guidance issued. The grey area relates to suspended sentences on which the guidance is silent.

A suspended sentence (custody minus) is one where though a Magistrates court imposed a sentence of upto 6months could choose to suspend it for upto 2 years and impose requirements like attending courses, unpaid work,supervision.

On the successful completion of this the penalty is discharged though the record remained.

Under the Rehabilitation of Offenders Act 1974 a suspended sentence was deemed to be on par with custodial sentences for the purpose of rehabilitation and had a 7 year unspent period.

So what chance does someone with a suspended sentence who completed all his requirements and the penalty was waived and has been free from any trouble for 3 years stand in applying for British Residency?

Also under the LASPO Act 2012, which is likely to come into effect in a few months, new thresholds have been defined for suspended sentences which have lowered the rehabilitation periods significantly , even lower than the 3 year threshold announced by the Border Agency.

As things stand people whose sentences have become spent in 2 and a half years have to wait for another 6 months as per the rules announced by the Border Agency.

This has opened the prospects of violation of legitimate expectation and human rights of uprooted migrants as any deal which is worse off than what the law of the land offers is in itself a travesty of all norms.

All informed comments will be appreciated.
VR

PS: It should also be noted there is no automatic right of appeal. When this area has been one for significant confusion, how the case workers will interpret this is a serious concern area.

http://www.immigrationboards.com/viewtopic.php?t=136725

Dear UKforever,

That FAQ is brilliant no doubt. The question is what is the source? Is this legit Border Agency FAQ or in other words was it compiled from the actual guidance issued by the Border Agency?

I am not questioning the legitimacy, just that the guide AN is silent on suspended sentences.

While it is clear ROA 1974, will no longer be applicable, there is potential for misinterpretation in the absence of clear cut guidelines.

Thanks!
VR

VR wrote:Dear UKforever,

That FAQ is brilliant no doubt. The question is what is the source? Is this legit Border Agency FAQ or in other words was it compiled from the actual guidance issued by the Border Agency?

I am not questioning the legitimacy, just that the guide AN is silent on suspended sentences.

While it is clear ROA 1974, will no longer be applicable, there is potential for misinterpretation in the absence of clear cut guidelines.

Thanks!
VR

The FAQ I created was based on UKBA Nationality Good Character Guidance I did not just pluck the information from thin air

Regarding a suspended sentence:

"In calculating the threshold it is the prison sentence that counts,
not the time served, and a suspended sentence counts as if it were a prison sentence"

It is immaterial whether there is legislation in place or not. The Rehabilitation of Offenders Act states that a simple police caution is immediately 'spent'. However, for citizenship that is not the case, the applicant would be 'barred' for 3 years, unless they rely on discretion as per question 8 in the British Citizenship – Good Character Requirement FAQs

I hope this answers your questions.

Dear D4109125,

First let me salute you for putting up a brilliant FAQ for the benefit of the board.

I never for a moment thought you pulled the FAQ's out of thin air.

So are you saying a Suspended Sentence of Less than 6 months will result in a person having to wait for 7 years to get his citizenship. This becomes spent in 2 and a half years as per the amendments to the ROA 1972 brought about by the LASPO 2012 which is expected to commence in Nov 2012.

If anybody with a one off suspended sentence applied recently may come forward to discuss their experience, it will help get some clarity.

''A non custodial sentence is one in which a person is convicted but not sent to prison''. Based on the note in quotes on threshold you mention, will they treat a suspended sentence which results in the requirements being met and the penalty being discharged as non-custodial is the question?

Sentencing is a joke in this country. For the same offence different judges dispense different sentences. The magistrate courts are whimsical. Now by putting the judgement into the hands of case workers, hope its not a case of handing a garland to monkeys.
Cheers
VR

VR wrote:Dear D4109125,

First let me salute you for putting up a brilliant FAQ for the benefit of the board.

I never for a moment thought you pulled the FAQ's out of thin air.

So are you saying a Suspended Sentence of Less than 6 months will result in a person having to wait for 7 years to get his citizenship. This becomes spent in 2 and a half years as per the amendments to the ROA 1972 brought about by the LASPO 2012 which is expected to commence in Nov 2012.

If anybody with a one off suspended sentence applied recently may come forward to discuss their experience, it will help get some clarity.

''A non custodial sentence is one in which a person is convicted but not sent to prison''. Based on the note in quotes on threshold you mention, will they treat a suspended sentence which results in the requirements being met and the penalty being discharged as non-custodial is the question?

Sentencing is a joke in this country. For the same offence different judges dispense different sentences. The magistrate courts are whimsical. Now by putting the judgement into the hands of case workers, hope its not a case of handing a garland to monkeys.
Cheers
VR

It appears for the time being at least that a suspended sentence will be treated akin to a custodial conviction. The person would have gone to prison but for the suspension, a conditional discharge may differ.

The fact that the ROA or the more recent 2012 Act discusses different 'spent' periods is not the important factor. Under the British Nationality Act there is no clear cut definition of Good Character it is a matter for the SoS aka HO.

Dear Amber,

So a person wil have to wait for 7 years or risk loosing the home office fees is what you say. In the case of a suspended sentence where the person did not go to prison ,but the damocles sword was hung up on his head and he was asked to comply with requirements and the penalty was waived. He fulfills his part.

Even as per the law of the land he is considered re-habilitated.

Interestingly Wikepedia says a suspended sentence is non-custodial

http://en.wikipedia.org/wiki/Custodial_sentence

But Home office says their own criteria will apply, ROA 1974 will not apply but their interpretation of a suspended sentence ...

Thanks for your inputs.
VR

VR wrote:Dear Amber,

So a person wil have to wait for 7 years or risk loosing the home office fees is what you say. In the case of a suspended sentence where the person did not go to prison ,but the damocles sword was hung up on his head and he was asked to comply with requirements and the penalty was waived. He fulfills his part.

Even as per the law of the land he is considered re-habilitated.

Interestingly Wikepedia says a suspended sentence is non-custodial

http://en.wikipedia.org/wiki/Custodial_sentence

But Home office says their own criteria will apply, ROA 1974 will not apply but their interpretation of a suspended sentence ...

Thanks for your inputs.
VR

Well I'm afraid that the home office doesn't follow wiki, though, yes a suspended sentence is non-custodial because the defendant is not imprisoned. It's not the fact that the applicant was imprisoned but that the gravity of the offence meant custody but for mitigating factors which lead to a suspension. This is confirmed in the guidance notes for citizenship applications. The 2012 act is unlikely to have any bearing on the current guidance.

Dear Amber,

Agreed. So what will be your advise to people who got suspended sentence orders?

They gotto follow the boxes above the non custodial sentence in the guidance and wait for 7 years and beyond to apply or risk loosing their fees??

Or if it was a one off do they stand a chance?

Or will good immigration solicitors be able to present the case properly and there will be a chance?

Rgds
VR

VR wrote:Dear Amber,

Agreed. So what will be your advise to people who got suspended sentence orders?

They gotto follow the boxes above the non custodial sentence in the guidance and wait for 7 years and beyond to apply or risk loosing their fees??

Or if it was a one off do they stand a chance?

Or will good immigration solicitors be able to present the case properly and there will be a chance?

Rgds
VR

I would suggest waiting. Only a minor conviction can possibly be disregarded before it is no longer a bar.

Dear Amber,

Some questions come to mind..

is the sentence taken into account or the disposal?In deciding whether a conviction is minor .

Now say for assault there is GBH, ABH and Battery all called assault between sec 39 to 47. They dispense suspended sentences, conditonal discharges, fine, community sentences depending on the whims of the magistrate on the day.

Now take the example of this Injustice:

The ROA was amended and became law on 1st May 2012. Then they brought the commencement Order for Sec 139, while the commencement order for reduction of rehabilitation periods sec 140 was delayed due to need for system changes and is expected in Nov 2013. Now a person whose suspended sentence became spent before Dec 2012 who could have applied before 12 Dec 2012 will now be at the mercy of the interpretation of the border agency case workers and forced to wait for 7 years.

British Justice at its best!!!!!
VR

VR wrote:Dear Amber,

Some questions come to mind..

is the sentence taken into account or the disposal?In deciding whether a conviction is minor .

Now say for assault there is GBH, ABH and Battery all called assault between sec 39 to 47. They dispense suspended sentences, conditonal discharges, fine, community sentences depending on the whims of the magistrate on the day.

Now take the example of this Injustice:

The ROA was amended and became law on 1st May 2012. Then they brought the commencement Order for Sec 139, while the commencement order for reduction of rehabilitation periods sec 140 was delayed due to need for system changes and is expected in Nov 2013. Now a person whose suspended sentence became spent before Dec 2012 who could have applied before 12 Dec 2012 will now be at the mercy of the interpretation of the border agency case workers and forced to wait for 7 years.

British Justice at its best!!!!!
VR

Certain offences under the Offences Against the Person Act 1861 are indictable only offences and wouldn't be tried at the magistrates. But yes, the rules are now harsher for some but better for others, for example those convicted and issued a fine contrasted with those who receive a simple police caution.

Dear Amber,

Please check this.... And update your FAQ on suspended sentences. It could mean opportunity lost for many people who are in doubt.

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Please refer to this

Page 69 of 151 Guidance - General grounds for refusal Section 1 – v13.0 Valid from 21 March 2013

All of us learn all the time. But your efforts to help are Praiseworthy and I decided to do my bit. Did not mean to interfere with your gr8 work.
Best Wishes
VR

VR wrote:Dear Amber,

Please check this.... And update your FAQ on suspended sentences. It could mean opportunity lost for many people who are in doubt.

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Please refer to this

Page 69 of 151 Guidance - General grounds for refusal Section 1 – v13.0 Valid from 21 March 2013

All of us learn all the time. But your efforts to help are Praiseworthy and I decided to do my bit. Did not mean to interfere with your gr8 work.
Best Wishes
VR

VR this does not relate to nationality it relates to immigration applications. Please do not confuse the two.

Dear Amber,

The home office cannot treat a suspended sentence as custodial for one end of the migration journey while treating it as non-custodial for another purpose.

Logically if what you are saying is true then what applies to the egg does not apply to the chicken.

On their website it clearly states cross cutting information , staff guidance and general guidance for refusing.

Cheers
VR

This is significant as rules keep changing, requirements keep changing and people have to take new exams from October 2013.

VR wrote:Dear Amber,

The home office cannot treat a suspended sentence as custodial for one end of the migration journey while treating it as non-custodial for another purpose.

Logically if what you are saying is true then what applies to the egg does not apply to the chicken.

On their website it clearly states cross cutting information , staff guidance and general guidance for refusing.

Cheers
VR

This is significant as rules keep changing, requirements keep changing and people have to take new exams from October 2013.

If you do not understand the rules I suggest you do not comment as you may mislead people. Immigration rules are separate from nationality rules. Thus the criminality threshold is different, arguably stricter for nationality.

Read a citizenship application guide scroll down to suspended sentence and read.

Dear Amber,

With due respect ,my intention is not to mislead or misguide. Please see this
In assessing whether a particular threshold is met you must use the sentence imposed, not
the actual time spent in prison. However, this does not include:
 suspended sentences (unless that sentence is subsequently ‘activated’), or
 convictions which are subsequently quashed on appeal.

I appreciate your time. I let the matter rest.
Regards
VR

PS: I have a close kin applying shortly. For him I dug my heels . I will post the outcome shortly.

VR wrote:Dear Amber,

With due respect ,my intention is not to mislead or misguide. Please see this
In assessing whether a particular threshold is met you must use the sentence imposed, not
the actual time spent in prison. However, this does not include:
 suspended sentences (unless that sentence is subsequently ‘activated’), or
 convictions which are subsequently quashed on appeal.

I appreciate your time. I let the matter rest.
Regards
VR

PS: I have a close kin applying shortly. For him I dug my heels . I will post the outcome shortly.

If you see the citizenship application guide which I linked (perhaps the best one of them all) on page 7 you will see:

"In calculating the threshold it is the prison sentence that counts,
not the time served, and a suspended sentence counts as if it were a prison sentence."

If your next of kin applied with a suspended sentence that had not lapsed then he/she face refusal. If this conviction was declared.

Though, failure to declare could be construed as deception.

Dear Amber,

You are right in saying"In calculating the threshold it is the prison sentence that counts, not the time served, and a suspended sentence counts as if it were a prison sentence" .
The suspended sentence order is one in which a judge suspends the prison sentence for a period of time and in this period if all the requirements are met the penalty is thrown out.

On the contrary if for any reason it goes to court then what you say will apply. The guidance on the website is clear.

Again what you say regarding the Caution is true. This is because Sec140 of the LASPO 2012 caused this anamoly by saying that ROA and its provisions will not apply for certain nationality and immigration decisions. And they issued guidance which uniformly put all non custodial sentences in one category, whether it is a fine , community sentence or bind over or conditional discharge or hospital order.

I have consulted different opinions and all the links I posted are from the site.
Please look at the following in the same order on the website and let me know what you think...

This is the home office web link
http://www.ukba.homeoffice.gov.uk/polic ... /guidance/
>Go to the Modernised Guidance
http://www.ukba.homeoffice.gov.uk/polic ... -guidance/
>Go to the Cross cutting information general grounds for refusing
http://www.ukba.homeoffice.gov.uk/sitec ... -refusing/
>Click the first document in the list
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary
>Scroll down to Page 69 of 151 Guidance - General grounds for refusal Section 1 – v13.0 Valid from 21 March 2013
You can see their guidance on suspended sentence
Suspended sentences
A suspended prison sentence must be treated as a non-custodial sentence.
However, an exception occurs if the sentence is subsequently ‘activated’. This means the person either re-offends or fails to adhere to or breaches the conditions attached to the suspension of the sentence.
If the sentence is subsequently ‘activated’, the sentence length is the one originally imposed.
For example, if a person is sentenced to 12 months’ imprisonment, suspended for two years and it is subsequently ‘activated’, the sentence must be 12 months.

VR wrote:Dear Amber,

You are right in saying"In calculating the threshold it is the prison sentence that counts, not the time served, and a suspended sentence counts as if it were a prison sentence" .
The suspended sentence order is one in which a judge suspends the prison sentence for a period of time and in this period if all the requirements are met the penalty is thrown out.

On the contrary if for any reason it goes to court then what you say will apply. The guidance on the website is clear.

Again what you say regarding the Caution is true. This is because Sec140 of the LASPO 2012 caused this anamoly by saying that ROA and its provisions will not apply for certain nationality and immigration decisions. And they issued guidance which uniformly put all non custodial sentences in one category, whether it is a fine , community sentence or bind over or conditional discharge or hospital order.

I have consulted different opinions and all the links I posted are from the site.
Please look at the following in the same order on the website and let me know what you think...

This is the home office web link
http://www.ukba.homeoffice.gov.uk/polic ... /guidance/
>Go to the Modernised Guidance
http://www.ukba.homeoffice.gov.uk/polic ... -guidance/
>Go to the Cross cutting information general grounds for refusing
http://www.ukba.homeoffice.gov.uk/sitec ... -refusing/
>Click the first document in the list
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary
>Scroll down to Page 69 of 151 Guidance - General grounds for refusal Section 1 – v13.0 Valid from 21 March 2013
You can see their guidance on suspended sentence
Suspended sentences
A suspended prison sentence must be treated as a non-custodial sentence.
However, an exception occurs if the sentence is subsequently ‘activated’. This means the person either re-offends or fails to adhere to or breaches the conditions attached to the suspension of the sentence.
If the sentence is subsequently ‘activated’, the sentence length is the one originally imposed.
For example, if a person is sentenced to 12 months’ imprisonment, suspended for two years and it is subsequently ‘activated’, the sentence must be 12 months.

Although I am pleased to see your passion for this 'unfairness' unfortunately non of your later paragraph is relevant to nationality cases.

Dear Amber,

Part of the inspiration is the FAQ you have put up. One can make a difference to many with some effort.

Incidentally I was digging deeper and I found this and believe the HO will regard a suspended sentence as a non-custodial sentence unless it gets activated.

For ILR a non-custodial sentence has a 2 year free period. The only difference for British Naturalisation is they have increased this to a 3 year free period.

http://www.wrighthassall.co.uk/articles ... ules-6-ap/

Have a great day
VR

VR wrote:Dear Amber,

Part of the inspiration is the FAQ you have put up. One can make a difference to many with some effort.

Incidentally I was digging deeper and I found this and believe the HO will regard a suspended sentence as a non-custodial sentence unless it gets activated.

For ILR a non-custodial sentence has a 2 year free period. The only difference for British Naturalisation is they have increased this to a 3 year free period.

http://www.wrighthassall.co.uk/articles ... ules-6-ap/

Have a great day
VR

If you want to keep relying on immigration rules for citizenship that is your mistake and choice.

Update - please see 'Good Character' clarifications – Suspended sentence

Hi,

I received a common assault caution 8 years ago which was in my CRB, but had now been taken off
because it have been spent.

DO I STILL HAVE TO SAY YES TO Question 3.10 of the British application form (Have you received any cautions (simple or conditional), warnings or reprimands in the UK or any other country?)

Jason247 wrote:I received a common assault caution 8 years ago which was in my CRB, but had now been taken off
because it have been spent.
DO I STILL HAVE TO SAY YES TO Question 3.10 of the British application form (Have you received any cautions (simple or conditional), warnings or reprimands in the UK or any other country?)

Yes it has to be declared even if it is spent