Pending application ..... but got a DWI yesterday

Hi everyone,

Everything was going perfectly, I worked with my lawyers in the UK to submit my visa application on December 15th and since then have just been waiting here in the US for word on a decision.

I have NEVER been in trouble with the law before, have nothing on my record, but all of a sudden I make a really stupid mistake and end up with a DWI on Christmas Eve. I feel so guilty for even posting this because I should just be happy that I didn't hurt or kill anyone in my stupidity.

The reason why I am posting is apart from all of the legal things I face here in the US, I'm wondering what my next steps are in terms of my application. As of the date when I submitted the application, this question was previously "no":

HAVE YOU BEEN ARRESTED AND CHARGED WITH ANY
OFFENCE IN ANY COUNTRY AND ARE AWAITING, OR
ARE CURRENTLY ON TRIAL?

And it is now yes. If I'm honest, I'm wary in engaging my UK immigration lawyer with this new detail because they were incredibly incompetent, constantly submitting documents for my review with many errors that I had to go through. I was essentially paying them to correct their work. So I'm thinking of engaging another UK immigration lawyer that would be better equipped to handle this scenario.

In terms of next steps, who and how do I notify the correct parties that the question above is now yes? I know that I will have to notify the UK home office reviewing my application because if I don't I will be withholding information. I am also aware I am at risk of getting my application denied or revoked at a later date.

After doing some research, seeing that this is my first offence I am hopeful that my lawyer would be successful in getting the charges dropped or case dismissed. My trial is likely to be in 6-9 months.

Merry Christmas and thanks for reading any advice would be incredibly appreciated

Contact Victoria Sharkey at Medivisas.  She'll advise correctly.

Unfortunately you will likely need to wait a year or so to qualify.     But she'll give you correct advise. 

Thank you for your quick reply! Do you mean that I know longer qualify even though they are just charges and I haven't been convicted? Thanks

Honestly, this is a first for me.  I suspect you no longer qualify as your circumstances are no longer the same as when you applied.  But that's why you need to talk to a reputable solicitor.  They will know for certain.

Just for your own knowledge, this is what you're up against:

320(18A)

The applicant has been convicted of
or admitted an offence for which they
received a non-custodial sentence or
other out of court disposal that is
recorded on their criminal record
within the 12 months prior to the date
on which the application is decided.

This is part of the section of discretionary refusals that a case worker will consider. That's assuming that you aren't given a custodial sentence for the DWI in the US, which given the details and personal history you've outlined, doesn't seem to be likely, fortunately.

320(18A) is first discussed on pages 43-44 of this document:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/607623/GGFR-Section-2-v28.pdf

and in more detail on pages 60-61.

This might be a good introductory read for you before you talk to any solicitors. My worry would be that the matter would need to be adjudicated first in the US before a decision may be taken on your entry clearance in the UK. I'm not sure what your time schedule is or if you're entering on a work or family settlement category. But you may find that the American wheels of justice grind slowly.

Good luck, and I'm sorry to hear about your situation.

Hi London Lad,

Thank you for your reply especially on Boxing Day and your kind words / understanding of my awful situation.

My worry is the same as yours. I'll be speaking to my immigration lawyer tomorrow to hear their thoughts and will report back on this forum in the hopes of this information helping someone in the future.

My curiosity remains the wording:

The applicant has been convicted of or admitted an offence for which they received a non-custodial sentence or other out of court disposal that is recorded on their criminal record within the 12 months prior to the date on which the application is decided.

As I have not been convicted or admitted guilt.

In addition, I didn't specify before but the visa I applied for was a UK Spouse visa.

Thanks again

The problem is, as you wrote in your original post, this question on the VAF4A form:

HAVE YOU BEEN ARRESTED AND CHARGED WITH ANY OFFENCE IN ANY COUNTRY AND ARE AWAITING, OR ARE CURRENTLY ON TRIAL?

The answer to that is now "yes", and it's an issue that Victoria at MediVisas (or someone similar) can help you deal with.

If you inform the Home Office of this change in your circumstances, they may hold off on (or perhaps refuse -- another Victoria question) your visa application until the US courts have resolved it. If the charge is dropped, then it's not an issue. If you are convicted and sentenced without jail time, then 320(18A) will spring into effect. Or mandatory refusal sections 320(2b), 320(2c) or 320(d) will be relevant if you're imprisoned (unlikely).

I honestly don't know what the timescale on this will be. It might become a waiting game of sorts, making for an ambiguous muddle, I'm afraid. But again, good solicitors on both sides of the Atlantic will be of great succour to you.

This is exactly along the lines I was thinking of / afraid of.

Will report back after the solicitors offices are open tomorrow.

Thank you again