ILR with court conviction - what the new rules say??

[DayDream]

Guys

I'm applying for Set O ILR coming 24th.

Was eager that the new rules will clear all the doubts, for people who had a court fine and/ or a court conviction (not a sentence or criminal conviction).

But the new set O form or guidance does not say things clearly(atleast im not able to understand). Has anyone got a clear view on this??

Can I apply for ILR with a Sp50 given at court For speeding , along with a fine and points on licence. date of conviction - October 2009

Ps- i have done crb, pnc checks and both are clean.

[DayDream]

Anyone??

Thanks...

[JohnM]

Check this out

http://www.immigrationboards.com/viewto ... 432#740432

[DayDream]

Check this out

http://www.immigrationboards.com/viewto ... 432#740432

Thanks johnM. So according to the new rules I don't think I should declare the court judgement on the form since it is more than 24 months?

[JohnM]

Well, I asked the same question myself. I have small fine and it does not show on PNC. I got letter from Police Officers Association which officially states that I do not have any criminal convictions.

But the form is designed in a confusing way (I think deliberately). They ask for spent and unspent conviction, ok I don't have them. But then they say - including all traffic offences for which you had anything to do with the court. So I was advised here on this forum and when I phoned solicitors and it is better to list it but they won't / can't refuse it based on this. I will list it just in case, so that not to give them even tiny chance to accuse me of hiding anything. Also, when I will apply for citizenship in the future they may check again, maybe DVLA record, and then they may ask, why did not you put it in the from for ILR. So I think it's safer to declare it because I have official paper from Police which says I don't have ANY convictions, so UKBA has no grounds to refuse me. I don't like the idea to tick the box that I have criminal conviction when I don't have it but maybe I will include cover letter where I would explain this and say that in fact I don't have any criminal record.

[JohnM]

And just to clarify.

By new rules they ask for all spent and unspent convictions. I never had conviction, so I don't have to declare my small fine. But because they wrote the form so confusing, I will better declare it just in case.

The fact that they ask now for even spent conviction does not make it harder to get IlR in most cases. They just want to be control freaks. USA always had similar rule for Green Card clearance. For example, if they see that you have 3 spent convictions overseas for involvement in terrorism, etc. maybe they will decide to refuse. But if you have spent conviction for speeding it's not grounds for refusal. But if we don't list something, potentially it gives them ground to accuse us of deception which gives ground for not only refusal but even 10 years ban from applying for UK visa.

[DayDream]

JohnM

It is very sad to see us all in this situation, not able to get our head around the ever confusing UKBA rules.

I have also read your other post, IMHO you should declare the fine(irrespective of whether it was issued at a court or via post). Also does your counter part licence have any convicting court code, if you received any points??

From the new criminality threshold, I picked the following requirement and I think this will be the key requirement for most of the applicants who have traffic offence(convicted at court, a fine issued at court/post).

(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.”

Heres my understanding for the above requirement and some possibilites to consider based on individual's scenario.

Scenario 1 - Conviction or court fine before 2 years:
If the applicant was convicted, issued fine(post or court) before 2 years from the date of application, then they are safe to mention the details in the form since UKBAs new form expects the applicant to put any spent or unspent conviction irrespective of the date of conviction. But the caseworker cannot refuse the application just because the applicant has a conviction, they need to determine whether it is within 24 months.

Scenario 2 - Conviction or court fine within 2 years:

If the applicant was convicted, issued fine(post or court) within 2 years from the date of application, then it will lead to further 2 possibilities

a) Not Recorded as offence: If the applicant was convicted or issued a court fine in the last 2 years, they can find out if the offence was recorded in any of the national crime databases(PNC or CRB). If these checks reveal nothing, they can take a chance to apply for ILR and may well be granted since UKBA too wont be able to see any conviction in the last 2 years unless they do checks that are different to PNC/CRB

b) Recorded as offence: If the applicant was convicted or issued a court fine in the last 2 years and after a PNC or CRB check reveals the conviction or court fine, then ILR will most probably refused since UKBA will be able to see the offence recorded and it will be within 2 years.

Im hoping that I fall in scenario 1 and will be granted ILR since my offence was more than 2 years ago and not recorded on the national crime database.

I will be happy to discuss further on this.

Wish you good luck.

[JohnM]

Yes, I agree with you.

You have nothing to worry about.

I fall into Scenario 2 a).

Mine is not recorded on PNC. And also Sushdmehta said that it looks like FPN in any case. There is also definition of recordable criminal convictions and most driving offence do not fall under this category (you can check google).

My main fear is that UKBA will have its own view in what is criminal record. And also they force me to put on the form that I have criminal conviction which I don't like. Common sense and logic tells me that UKBA can't refuse me but UKBA is not always like that. I once forgot to include one certificate of higher education during visa extention and instead of giving me chance to send it to them they reused and I had to make appeal to Tribunal which took 7 months during which I did not even have a passport and I could not even travel inside UK for more than 2 days because I had to wait for their letter. It happened in the election year, so I think it was last attempt by Labour government to show better immigration statistics.

So I made new topic and asked Sushdmehta to answer to some of my concerns. http://www.immigrationboards.com/viewtopic.php?t=120832

So that other immigrants in the future would avoid these worries. Basically, he already clarified a lot, I just hope he would reply to me again and put my mind to rest. I hoped to see more clear info on UKBA website after 13 December but it did not appear.

[DayDream]

JohnM

I hope you get some advice from seniors for your peace of mind!

The new changes to the rules have made thing complex rather easier.

Can't wait for my appointment next week to be over.

Cheers

[ssidd]

John,
I am in the same situation, yesterday i got copy of disclosure scotland and it mention my traffic offences i,e, points and fine under the heading of conviction....yours disclosure were same...mean traffic offence under the heading of conviction??

sidd

[JohnM]

Ssidd, yes, exactly like that.

Then I decided to apply for US tourist visa and I ordered ACRO police certificate. It shows NO TRACE and in cover letter it tells me that I don't have ANY convictions. http://www.acro.police.uk/police_certificates.aspx I even reported them that I have criminal conviction when I filled their form and described my traffic offence in full.

Also, there is definition of recordable offences in UK. You can check yourself on google. And most traffic offences are not recordable offences unless it is something very serious, for example alcohol + serious injuries / fatalities. Therefore they do not lead to criminal record, therefore, they can't be grounds for refusal for ILR. Sushdmehta already kindly updated forum sticky about it - http://www.immigrationboards.com/viewtopic.php?t=120784

What really makes me angry is why the hell Disclosure Scotland put it under convictions. But it is less important agency than ACRO or PNC (Police National Computer). So I have only one fear that UKBA would decide to treat it as Disclosure Scotland. But I don't think they can do it. Well, still even if there is 1% chance they try doing it, I can't fully relax. That's why I asked Sushdmehta about it. And now you're in the same boat. I'm sure many more people would worry.

There is some confusion over criminal record definition in UK. In broad terms, anything to do with police creates some sort of a record. So Disclosure Scotland decided to disclose such records. But it is not person's "criminal record". So there is nothing on PNC. I am also quite upset to tick in the form the box that I have criminal convictions. Why should I do it if ACRO says I don't have any? Most people advice to tick anyway, so that UKBA can't accuse you of deception which is much more serious. But still, how can they accuse me of deception if I have official letter from ACRO.

So, I hope Sushdmehta could answer. You can also ask him - write in my topic that you have the same questions. More chances he would answer.

Here it is: http://www.immigrationboards.com/viewtopic.php?t=120832