Changes to the Criminality Requirements (professionals pls)

[JohnM]

Hello

New immigration rules published today http://www.ukba.homeoffice.gov.uk/sitec ... r/35-rules

It would be great if one of Gurus could have a look and clarify it because a lot of people must be very interested in it. I am not solicitor, so maybe I got it all wrong?

I see a lot of people noticed about new absence rules. But what about new criminality requirements? It looks like, correct me if I'm wrong, people finally will not need to worry about minor traffic offences, fines, etc.

New rules were published today (http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary)

From Page 79:

Changes to the Criminality Requirements
7.46 The general grounds for refusal (Part 9 of the immigration rules) provide a cross-cutting range of factors – some discretionary, some mandatory – which, if applicable, result in a refusal of an application even if the more specific requirements of a particular immigration route are met.
7.47 The changes to the criminality requirements respond to the commencement of section 56A of the UK Borders Act 2007 (inserted by section 140 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012), which came into force on 1st October 2012. This will put beyond doubt whether or not the concept of a conviction becoming ‘spent’ within the meaning of the Rehabilitation of Offenders Act 1974 is applicable in immigration and nationality decisions.
7.48 Instead, the requirements within the general grounds for refusal will determine whether or not that application will be successful.
7.49 This approach improves the fairness, transparency and consistency in the UK Border Agency’s decision-making process. Applicants will know exactly how any criminal convictions affect their application.
7.50 One of the consequential amendments is the removal of the requirement to have no unspent convictions in order to make a successful application for indefinite leave, which is being replaced by the wider criminality framework outlined in Part 9 and Appendix FM.

If we look at Part 9 (http://www.ukba.homeoffice.gov.uk/polic ... les/part9/) it says:

18: save where the Immigration Officer is satisfied that admission would be justified for strong compassionate reasons, conviction in any country including the United Kingdom of an offence which, if committed in the United Kingdom, is punishable with imprisonment for a term of 12 months or any greater punishment or, if committed outside the United Kingdom, would be so punishable if the conduct constituting the offence had occurred in the United Kingdom;

I did not find anything else there about criminality.

So, did I understand correctly? Does it mean that now only criminal convictions of 12+ months imprisonment will create problems for ILR application?

I don't want to make this topic a speculation zone. It would be great if one of Gurus could have a look and clarify it because a lot of people must be very interested in it. I am not solicitor, so maybe I got it all wrong? (sorry for repeating it but really don't want speculations)

Thanks a lot!

[Greenie]

No, you have not understood the changes correctly. Part 9 has also been amended (see the statement of changes from para 261 and in particular from para 271 with respect to applications for ILR)

271.
After paragraph 322(1A) and before the cross-header entitled ‘Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom should normally be refused’, insert “
(1B) the applicant is, at the date of application, the subject of a deportation order or a decision to make a deportation order;
(1C) where the person is seeking indefinite leave to enter or remain:
(i)
they have been convicted of an offence for which they have been sentenced to imprisonment for at least 4 years; or
(ii)
they have been convicted of an offence for which they have been sentenced to imprisonment for at least 12 months but less than 4 years, unless a period of 15 years has passed since the end of the sentence; or
(iii)
they have been convicted of an offence for which they have been sentenced to imprisonment for less than 12 months, unless a period of 7 years has passed since the end of the sentence; or
(iv)
they have, within the 24 months preceding the date of the application, 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.”
272.
In paragraph 322(5), delete “character, conduct and associations” and substitute “conduct (including convictions which do not fall within paragraph 322(1C)), character or associations”
273.
After paragraph 322(5) but before 322(6), insert
“(5A) it is undesirable to permit the person concerned to enter or remain in the United Kingdom because, in the view of the Secretary of State:
(a)
their offending has caused serious harm; or
(b)
they are a persistent offender who shows a particular disregard for the law.”

[JohnM]

Thanks for so fast reply. Where can I see it?

(see the statement of changes from para 261 and in particular from para 271 with respect to applications for ILR)

Could you please direct me, it's quite important for me.

[Greenie]

New rules were published today (http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary)

[JohnM]

Sorry, did not notice your quoted rules.

So, does it mean that if there is traffic conviction by court, then it will delay application for ILR for two years?

[JohnM]

they have, within the 24 months preceding the date of the application, 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

But at the moment there are exceptions. It must constitute to "recklessness". So, will it now apply to ANY traffic conviction with the fine from court? Because at the moment they give ILR to many people even with CRB record if it was one minor conviction which was not "recklessness".

[JohnM]

So, if a UK citizen receives fine from court, then it will be spent in 1 year time. But if an immigrant receives the same fine, then he will be considered to be good enough for leave to remain only after 2 years time? Even if he/she lived here for years and years and it was one minor traffic offence? Would it really be that crazy? Do I understand it correctly?

So they basically made the worst case scenario. They made their own table of spent convictions for immigrants completely different from citizens.

I think this is terrible.

I wonder, would they refuse any application, even with minor driving offence, which was not "recklessness" with small fine? Will they cancel this rule now that they will ignore one small offence "which does not constitute to recklessness"?

[JohnM]

Greenie, thank you so much for clarifying it.

Now I got more questions, more specific to my case. I made separate topic for this:

http://www.immigrationboards.com/viewtopic.php?t=119010

Greenie, I can't ask you to reply now when it is so late. But if you could have a look at it tomorrow and kindly reply to me, it would be great. I don't think my case is so unique. It will probably help many people who received small fine from court, etc. and who would look and new rules and wonder how they will affect them. Because on one hand, new rules look kind of less harsh, on the other, much more harsh, if they won't allow any discretion as before when they ignored one minor offence for ILR application. (in case of traffic offences if it was not "recklessness").

[madhumesh]

they have, within the 24 months preceding the date of the application, 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

seems they included cautions, penalty, fines etc which were excluded before

[JohnM]

That's the same question I have on my mind. Will there still be discretion for one minor offence as it was before?

[JohnM]

Strange. My new post disappeared. Did somebody delete it? If so, why? Please return it back.

Edit: oh, it came back,great.

[geriatrix]

people finally will not need to worry about minor traffic offences, fines, etc.

Such offences were never a cause of worry. People only assumed they were!! There are several postings in the forum to prove so.

[JohnM]

Thanks so much for the reply. I know, I read forum a lot. But I worry that new rules which came today would make it a problem. They would not?

[kvora]

Hi all,

I have an AC20 driving offence code, does it gets considered as minor/major traffic offence?

Thanks