ILR - Impending Prosecution

[Geno]

I received a citation for dangerous driving (undertaking) on/about 20 April 2014 and this is to be heard on 27/05/2014. The alleged offence happened on 28 February 2014.

I have applied on 19/05/2014 for my ILR via the Premium Service, as my Visa will expire on 25/05/2014. The outcome of this application was that the case worker (Home Office) have decided to keep my application for ILR on hold, pending the outcome of the prosecution for dangerous driving and that my application will not be decided until the proceedings are resolved.

The nearest that I can find to my circumstances is the following:

322 (1C) where the person is seeking indefinite leave to enter or remain:

(iv) they have, within the 24 months prior to the date on which the application is decided,
been convicted of or admitted an offence for which they have received a non-custodial
sentence or other out of court disposal that is recorded on their criminal record.

My circumstances do not fall in the above category and I'm not sure whether they have made the correct decision.

Questions:
Is the decision that they have made the correct decision? Can they make a decision like this?
Currently they have not made any decision yet, is there anything that I can do in this case?
Do I have any rights to an appeal?
Any ideas?

Thanking you in advance for your comments.

[earth2ange]

I think the devil is in the detail here.

they have, within the 24 months prior to the date on which the application is decided,
been convicted of or admitted an offence for which they have received a non-custodial
sentence or other out of court disposal that is recorded on their criminal record.

This section states "application decided" not "application received or submitted". It looks like they are intentionally delaying your application decision, which they can rightfully do until such time as you fall into (or out of) this category - which is one of the mandatory grounds for refusal. It is probably standard practice with pending prosecutions.

[Geno]

It does seem as if they are deliberately trying to delay a decision on this until such time as there is an outcome to the court case. The problem is that we are not even at the stage where a trial date is set. That will only happen on the 27/05/2014 and from what the lawyer tells me, the earliest that I can expect this to come before the court will be somewhere in September/October.

That seems quite far away from the 24 months preceding 19/05/2014, in which I have neither been convicted of nor have I admitted any offence.

[earth2ange]

Again, it is 24 months prior to the application decision not the application date you are quoting (19/5/14). They have not yet decided your application and will most likely not decide it until there is a result from your prosecution. You can try and check if there is a maximum length of time they can delay a decision and then try to delay your prosecution past this point - but I suspect that there is no such loophole as this.

[scorpio81]

Hi Geno

Just a quick query, Did u declare that pending offence (court hearing) on your application for ILR.?

I received a citation for dangerous driving (undertaking) on/about 20 April 2014 and this is to be heard on 27/05/2014. The alleged offence happened on 28 February 2014.

I have applied on 19/05/2014 for my ILR via the Premium Service, as my Visa will expire on 25/05/2014. The outcome of this application was that the case worker (Home Office) have decided to keep my application for ILR on hold, pending the outcome of the prosecution for dangerous driving and that my application will not be decided until the proceedings are resolved.

The nearest that I can find to my circumstances is the following:

322 (1C) where the person is seeking indefinite leave to enter or remain:

(iv) they have, within the 24 months prior to the date on which the application is decided,
been convicted of or admitted an offence for which they have received a non-custodial
sentence or other out of court disposal that is recorded on their criminal record.

My circumstances do not fall in the above category and I'm not sure whether they have made the correct decision.

Questions:
Is the decision that they have made the correct decision? Can they make a decision like this?
Currently they have not made any decision yet, is there anything that I can do in this case?
Do I have any rights to an appeal?
Any ideas?

Thanking you in advance for your comments.

[Geno]

Yes, I did declare it.

[scorpio81]

Yes, I did declare it.

Thanks for that.

Is there a section in the application form where we have to declare prosecutions not yet heard.?

[montysingh]

Yes, I did declare it.

Dear Geno mate

Are you thinking of accepting the offence of dangerous driving or you going for a trial. If you going for a trial and lost in the end, you will pay a lot bigger price than just accepting the offence.

In my case i got two convictions as well but the actual prosecution date and the offence date difference was 8 months. So i ended up paying a big price for my convictions because now i have to get extension of my current visa to get out of 24 months period.

So, please think carefully before you go with trial, as traffic lawyers costs similar if not more to immigration lawyers. Also if you loose your case in the court after trial, you will also not get the early discount for accepting the offence and judge will give you even harsh penalty.

ALso, discuss your case with experienced members at pepipoo.com/forums- a really good and helpful community.

[Geno]

Yes, I did declare it.

Thanks for that.

Is there a section in the application form where we have to declare prosecutions not yet heard.?

Yes, there is a section where you have to declare it. If you don't declare it and they find out through their checks, it is grounds for a refusal.

Regarding the Acceptance of the offence - I have to go to court. If I don't; I get an immediate sentence of a minimum of 12 months driving ban, plus I have to redo my license and I get a criminal record. Being found guilty of a criminal offence will result in a refusal of my ILR for at least another 24 months.

This is a heavy price to pay for a first traffic offence in 29 years of driving various different vehicles.