Eligibility for 10-Year Long Residence Rule After Conditional Discharge

[charith_rajamathri]

Hi, anyone with information or advice will be highly appreciated,

I came to the UK in 2014 as a student. I progressively completed my college and university education and am currently finishing my research degree. This has accumulated to almost 10 years in the UK, making me eligible for the 10-year long residence rule. Unfortunately, I recently received a conditional discharge for 6 months for an alleged driving offence, which I denied.

Does this make me ineligible for applying under the 10-year-long residence rule? I'm trying to find any previous verdicts from HM Immigration Tribunal cases, which is very hard to find. This conditional discharge is the first and only conviction I have received during my 10 years of staying in the UK. I would greatly appreciate any help you could give me on this matter.

[zimba]

Conditional discharges are considered as non-custodial sentences or out-of-court disposals, recorded on a person’s criminal record.
The refusal will NOT be mandatory but discretionary. Other factor will be considered to see if a refusal is appropriate or not:

Absolute and conditional discharges are considered as non-custodial sentences or
out-of-court disposals, recorded on a person’s criminal record. The exception to this
is where the person is given a conditional discharge but commits a further offence
during the period of conditional discharge and is re-sentenced. In such a case you
should consider the sentence imposed when the person is re-sentenced.

Where a person has been convicted of an offence in the UK or overseas for which
they have received a non-custodial sentence or an out-of-court disposal you may
exercise discretion in deciding whether to refuse their application (apart from visitors
and those seeking entry for less than 6 months). You must consider the individual
circumstances of the case; what may be appropriate for one case will not be
appropriate for another.

The following, non-exhaustive, list of factors must be considered when assessing whether it is appropriate to exercise discretion:

• whether the person already has permission
• whether the person is making a first-time application
• if the person already has permission, did they start offending soon after they arrived in the UK?
• there is more than one instance of criminality and/or offending so that refusal is appropriate on the grounds of persistent offending, or the person should be referred for deportation consideration
• whether the sentence is very short, such as detention at court under Section 135 of the Magistrates’ Courts Act 1980 for a single day
• the length of time passed since the offence was committed, including whether any other entry clearance or permission has been granted since the offence
• the relevance of the offence to the application
• any ties the person has to the UK

https://assets.publishing.service.gov.u ... nality.pdf

[charith_rajamathri]

Conditional discharges are considered as non-custodial sentences or out-of-court disposals, recorded on a person’s criminal record.
The refusal will NOT be mandatory but discretionary. Other factor will be considered to see if a refusal is appropriate or not:

Absolute and conditional discharges are considered as non-custodial sentences or
out-of-court disposals, recorded on a person’s criminal record. The exception to this
is where the person is given a conditional discharge but commits a further offence
during the period of conditional discharge and is re-sentenced. In such a case you
should consider the sentence imposed when the person is re-sentenced.

Where a person has been convicted of an offence in the UK or overseas for which
they have received a non-custodial sentence or an out-of-court disposal you may
exercise discretion in deciding whether to refuse their application (apart from visitors
and those seeking entry for less than 6 months). You must consider the individual
circumstances of the case; what may be appropriate for one case will not be
appropriate for another.

The following, non-exhaustive, list of factors must be considered when assessing whether it is appropriate to exercise discretion:

• whether the person already has permission
• whether the person is making a first-time application
• if the person already has permission, did they start offending soon after they arrived in the UK?
• there is more than one instance of criminality and/or offending so that refusal is appropriate on the grounds of persistent offending, or the person should be referred for deportation consideration
• whether the sentence is very short, such as detention at court under Section 135 of the Magistrates’ Courts Act 1980 for a single day
• the length of time passed since the offence was committed, including whether any other entry clearance or permission has been granted since the offence
• the relevance of the offence to the application
• any ties the person has to the UK

https://assets.publishing.service.gov.u ... nality.pdf

Hi,

Thank you for the quick reply; I really appreciate your help.

I have a question about the criminality section you quoted on page 10, which states:

"Indefinite leave to enter or remain – mandatory refusal

You must refuse an application for indefinite leave to enter or remain where the applicant:

• has, 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 (under paragraphs 320(1C)(iv) and S-ILR.1.6. of Appendix FM)"

Does this mean that I have to wait another 24 months from the date of my conditional discharge to apply for ILR under the 10-year-long residence route? Or is there a specific period after receiving the conditional discharge that I can apply for ILR?

Your response will be greatly appreciated!

Thanks!

[zimba]

No. That is for Criminality rules for applications made before 9am on 1 December 2020
For applications made from that point onwards, a different set of rules apply and there is no mandatory refusal for non-custodial sentences permission to stay. I already showed you this above. You must read pages 13 and onwards:

Criminality rules for applications made after 9am on 1 December 2020

Mandatory refusal of entry clearance, permission to enter or permission to stay
Paragraph 9.4.1. of the Immigration Rules provides that entry clearance or permission must be refused where the applicant:
(a) has been convicted of a criminal offence in the UK or overseas for which they
have received a custodial sentence of 12 months or more
(b) is a persistent offender who shows a particular disregard for the law
(c) has committed a criminal offence, or offences, which caused serious harm

Discretionary refusal of entry clearance, permission to enter or permission to stay (other than for visitors or those seeking entry for less than 6 months)
Paragraph 9.4.3. of the Immigration Rules provides that entry clearance, permission to enter or permission to stay may be refused (where paragraphs 9.4.2. and 9.4.4. do not apply) where the applicant:

(a) has been convicted of a criminal offence in the UK or overseas for which they
have received a custodial sentence of less than 12 months
(b) has been convicted of a criminal offence in the UK or overseas for which they
have received a non-custodial sentence, or received an out-of-court disposal
that is recorded on their criminal record

Visitors and those seeking entry for less than 6 months – mandatory refusal of entry clearance or permission to enter
Paragraph 9.4.4. of the Immigration Rules provides that entry clearance or permission to enter under Appendix V: Visitor, or a person seeking entry on arrival in the UK for a stay for less than 6 months, must be refused where the applicant:

(a) has been convicted of a criminal offence in the UK or overseas for which they
have received a custodial sentence of less than 12 months, unless more than
12 months have passed since the end of the custodial sentence
(b) has been convicted of a criminal offence in the UK or overseas for which they
have received a non-custodial sentence, or received an out-of-court disposal
that is recorded on their criminal record, unless more than 12 months have
passed since the end of the custodial sentence