ILR application - long residence

[johny007]

Wishing to apply for ILR on the basis of 10 years Long Residency rule, but have two spent (more than 5 years ago) and one unspent (more than 4 years ago - so no DVLA records) traffic related "court convictions"- as they call it. (Intern license, speeding, jump red lite)

- Read the new rules coming into effect from 13 Dec 2012 (HC 760 : paragraph 276B(iii))
http://www.ukba.homeoffice.gov.uk/sitec ... ofchanges/
- Read most of the topic thread threads on this website
- Read most of UKBA guides, news,etc

I have two major questions for all you guys out there:
1. Is there a possibility that my £250 court fine and 3 point penalty received in court for TS10 and court not taking my license away while totting up 12 points (!!!) (nov 2008) not to show on the PNC as it doesnt show up on an Enhanced CRB check?

2. If somebody with spent convictions apply before 13 Dec 2012 and is granted ILR, when he applies for BC can he be refused by UKBA when declaring three spent driving convictions - on the grounds that he is no of a good character?

I genuinly not know what to do, as I have a feeling if I leave my application after 13 dec, I might never have a chance to apply for BC.

Any suggestions welcome.
Cheers
johny

[John]

From the Change to the Immigration Rules :-

Changes to the Criminality Requirements
7.46 The general grounds for refusal (Part 9 of the immigration rules) provide a crosscutting 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.

[elf_fm]

It seems it make it clear that the application will be fine if no conviction is recorded on the criminal record (clean CRB?) no matter the conviction within 24 month is spent or unspent.


"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"

From the Change to the Immigration Rules :-

Changes to the Criminality Requirements
7.46 The general grounds for refusal (Part 9 of the immigration rules) provide a crosscutting 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.

[JohnM]

Well, it seems clear to me too.

The question is what sort of convictions will delay application by 24 months. I don't think CRB can be used as certain guidance here because sometimes it shows non-recordable offences. I think Border Agency means only recordable offences (which potentially imprisonable plus some more, check google). But it will be clear 100 percent, hopefully, within next 1-2 weeks when they update all documents on the website according to new rules.

I hope it's common sense that minor traffic offences, even if they were recorded on Disclosure Scotland, for example, would not fall under new 24 months rule. It would be draconian law if they would. Well, Gurus already suggested that it should not happen. We should wait little bit and it must be clear and, hopefully, confirmed soon. Otherwise, it would be pure speculation at this moment unless some professional solicitor would like to comment here.

[johny007]

Thanks for your replies guys, yes we cannot speculate what will happen until we dont actually see the new forms. But I got a feeling that UKBa will make the rules tighter, not easier....they never make it easier.
My question is what to do in my case.
Nothing shows on an Enhanced CRB as I do it every year becasue working with kids. Applying now for a PNC check to see if anything there.
I got a feeling that is all clear, although I have the court conviction for TS10 and 3 points with a £250 fine for jumping red light more than 4 but less than 5 years ago. They sent me to court as I totted up 12 points so judge wanted to take away my license. Luckily I found aloophole in the law and defended myself in court succesfully without any lawyer, but they gave me a hefty fine, actually I think it was something like £350, dont know why only £250 shows on my license.
Can it be possible not to be shown on my record that I have this corut conviction for driving offence as the underlying issue was only a fixed penalty 3 point fine, which eventually got enlarged by judge so system makes a profit and I can keep my license?
I am asking this as some Gurus around here and other places wrote that if the CRB is clear you might still have somethign on your PNC record. But is the same case with the PNC? As I read that they can make different requests a standard or enhnaced(deeper _) PNC check. is that true?
The other issue is can thay make the new forms in a way to oblige you to decalre any spent convictions, as there is that specification in the new law (rehabilitation act), that it doesnt apply for immigration purposes?
I deffinetely keep you posted guys here about my case.
Cheers
Johny

[JohnM]

Even if you have something on PNC, it should not automatically mean that you can't apply in my opinion. I don't think you committed any recordable offence. I myself also did not commit recordable offence but for some idiotic reason it shows on Disclosure Scotland. Check google for definition of recordable offences. So sometimes it shows non-recordable offences. It's like a lottery, so the only fair way is that they should ignore non-recordable offences because these are minor offences, in most other countries they are not even part of criminal law.

I don't think they would refuse to people like you based on unspent convictions. It must be made for serious crimes or multiple immigration law breaks.

Well, this is common sense. In most countries if you have a fine for road traffic accident, where nobody was hurt and you were not drunk,etc. it's never part of criminal system. In UK, for some reason, even if you are fined for very small offence, in some way it can be called criminal conviction. However, it would be idiotic to treat it as real crime.

I myself found UK law system quite stressful, I found out all necessary info about USA laws in my case in 5 minutes. In UK it's not easy to find anything with 100 percent accuracy. So we have to wait for new rules and then, hopefully, gurus here will help to understand them. But I don't think you need to worry, you did not commit any real crimes.

[johny007]

Cheers for your reply.
I was reading a post made today here about the new changes in ROA law affecting ILR, but unfortunately the post is locked. I have read t&C but still not sure why.
http://www.immigrationboards.com/viewto ... s+act+2012

Just to get this right:
- from Spring 2013, the ROA changes will come into effect, so I will have to declare all spent and unspent convictions on the SET(O) form if I am applying for ILR after Spring 2013
- as of now, before or after 13 Dec, I do not have to declare the spent conviction on the SET(O) form, as the ROA is still in its old form so it still applies for immigration purposes and I dont have to reveal my spent convicitons***
- If I have one unspent driving conviction from 2008, I will have to declare ONLY this onto the SEt(O) form, iof applying before or after 13 dec ( but before changes in the ROA in 2013), and the spent convictions I can leave out as they are SPENT by current laws.
- UKBA cannot refuse me for this unspent conviction on the grounds of General grounds of refusal (section 9) as it didnt happen in the last 24 months.
- My only issue is that the fine is £250, so they might ask why it is so high, if it is just 3 points on my license, than I would have to reveal that is high becasue they wanted to take my license away for totting up, but eventually they didnt....

Am I right to assume that I should be fine to apply as long as I do it before the new ROA becomes law in 2013? Does anybody know the date for this ?

Johny

NOTE
***
I have called UKBA twice today and they "advised" me to disclose all convictions even if they are spent on the SEt(O) form, even if they say below that you dont have to declare the SPENT ones....this is crazy. The lady started to be a bit rude - I think a lot of people calling them becasue of the confusion created. Eventually they agreed to call me back within 48 hours with the answer. Will keep you posted on this.