Hi everyone. Firstly I have to state I'm not particularly a good writer but hopefully it's decent enough for you to understand, further more I forgive me for this is long. I'll try to make it as short as possible so as not to bore you all. I have been a fervent visitor of this site and learnt a lot over the years. I wanted to share my experience in the hope that others in my situation might be encouraged from it.
I came into the UK in January of 2008 on a spouse Visa, by December of the same year I was already convicted and sentenced to 18 months in prison. By this time my wife was already pregnant. While in prison everyone I spoke to including solicitors told me it was impossible to remain in the country after my conviction, all odds were stacked against me..i.e I'm new in the country and my sentence is over 12 months which makes me eligible for auto deportation.
I applied for asylum and was promptly refused and duly served a deportation order , I appealed and had the order over turned, the Home Office granted me 6 months discretionary leave to remain from August 2010 to February 2011, an in time application was made for extension, though it took the Home Office 15 months to decide I was issued a 3 year extension from June 2012 to June 2015, I applied for another extension which took 13 Months to complete, I was I was Granted the extension from July 2016 to August 2019, about 3 weeks after it was granted I became eligible for Indefinite Leave to remain having accrued 6 years discretionary leave ( All the waiting times included ) I subsequently applied for this leave a week after I became eligible last week in August 2016 even though my last extension had about 2 years and 11 months left. The application took forever, first they sent it back in January 2017 saying payment was declined and we sent it back with the right payment information... several months passed , with chase up letters from my solicitors, complaint letters and finally my solicitor sent a Pre Action Protocol letter ( PAP ) Letter was sent in last week of January 2018 , finally I received a response from the UKVI today 26th of Feb 2018 that my Indefinite Leave has been Granted.
Information for people with criminal records are limited on this site and that is understandable, after all not many people run around committing crimes but from the limited info available my understanding has always been if you have criminal record you fail the " good character test" and so cannot get indefinite leave to remain, this is misleading, there is a certain clause my solicitor used to overcome this in all my readings on the internet I've actually never come across this clause until my solicitor used it and because of this clause I was granted the leave. I shall type it below, hopefully this helps someone out there. Many thanks all for the great support you give each other on this site.. for all still waiting, I hope your good news arrives soon.
The key representation my solicitor made is below.
The Legal Requirements for Indefinite Leave to Remain
Chapter 8 of the IDIs titled “Transitional provisions – Family members under Appendix FM of the Immigration Rules” states at para 2.3:
“Applicants who were granted leave under the Discretionary Leave policy before 9 July 2012 will continue to be considered under the discretionary leave policy through to settlement provided they continue to qualify for leave and their circumstances have not changed (normally the individual can apply for settlement after accruing six years of discretionary leave, unless discretionary leave has been granted because the individual is excluded from a grant of asylum or humanitarian protection, in which case 10 years leave is usually required). Consideration must be given to the general grounds for refusal when considering an application for further discretionary leave.”
Our client was granted Discretionary Leave to Remain following an asylum claim and therefore the Home Office Asylum Policy Instruction, Discretionary Leave, Version 7.0, Published: 18 August 2015 applies to his case. The Policy Instruction states, with regard to DLR, that individuals should be granted Settlement after 6 years unless the Exclusion and Criminality provisions apply.
The Exclusion and Criminality provisions state that:
“Where an individual does not fall within the restricted leave policy (for example, where they are not excluded under Article 1F or the criminal sentence was less than 2 years’ imprisonment), caseworkers must consider the impact of any criminal history before granting DL […]”
As our client was sentenced to less than 2 years in prison, namely 18 months, he does not fall within the criminality and exclusion provisions of DLR and would therefore be entitled to qualify for ILR having complete 6 years under the DLR route.
The impact of his criminal history has already been considered by the caseworker when granting our client Discretionary Leave to Remain. This was granted to the Applicant in the full knowledge that he had been convicted to 18-months imprisonment for importation of drugs. Therefore, a grant of ILR is not only appropriate but properly justifiable.
In addition to the above, the relevant case law in this area fully supports and justifies a further grant of ILR on the basis of article 8 ECHR grounds, as previously argued in our representations for a further grant of DLR.
Conclusion
We therefore submit that this is an appropriate case where Indefinite Leave to Remain under the pre-July 2012 Discretionary Leave to Remain Rules should be granted.
Yours Faithfully,
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and thanks again for this Insight, it will make a great addition for reference purposes.