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Topic: FAQ Tip: Applicants with a criminal history  (Read 9632 times)

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FAQ Tip: Applicants with a criminal history
« on: July 18, 2011, 01:23:21 PM »
We're seeing more questions from people wanting to apply for a UK visa and have a criminal history of some sort.  Some people worry that disclosure from their past may adversely affect their application and so they are reluctant to make a disclosure.  Others are just confused about what it has to do with and why visa applications require a person to list convictions.

One of the reasons people find it confusing is that there are about 3 or 4 different facets of immigration law where criminal history is relevant, and there's no place that consolidates all of them into one easy-to-understand framework.

Let's list a few of these facets...

Overall, the Home Office (acting in the persona of Secretary of State for the Home Department, or SSHD) has the power to refuse a visa if he/she thinks that having the person in the UK is not conducive to the public good.  SSHD can also, by the way, grant entry to someone with a criminal history if he/she thinks that their EXCLUSION would be invidious.  Both of these powers are derived from the 1971 Act.

Next, there are aspects of European law which bear on who and who cannot get a visa.  This facet is a lot more confusing because the UK has opted out of various EEA provisions.  I have observed that sometimes SSHD will pull an EEA provision out of the hat and use it to their advantage even if the UK has already opted out of the provision.

Next, if the person's conviction has to do with something that requires vetting for employment (like a child worker), it can impact an immigration decision.

Next, the 1971 Act (later enhanced by the 1981 Act) introduced a 'good character' requirement.  Some, but not all of the 'good character' requirement touches on criminal history.

Also, the 1971 Act made it a crime to enter the UK without entry clearance if the person has a conviction that resulted (or would have resulted) in a year or more of jail time.  The 1998 Act added provisions for material ommissions and 'deception by silence' in immigration applications.

Lastly, as of April 2011 a person cannot successfully apply for settlement with an unspent conviction.

So those are the various facets of the rules that come into play when a person has a criminal history.  Taking all of those into account, there are some other things to consider...

The Rehabilition of Offenders Act 1974.  This act defines how convictions become 'spent' (i.e., no longer requires disclosure).  The act itself never mentions immigration, but three successive governments in the UK have interpretted that the provisions of this act also apply to visa applicants overseas.  So if someone wants to use the 1974 Act to avoid disclosure, it's ok to do so.  The issue to bear in mind is that foreign legal systems are not comparitve, and this could lead a person to think their conviction was spent when it actually was not.

Another thing to consider is the recent strengthening of Paragraph 320 of the rules, which stipulates a ban for people  who have engaged in deception or similar abuse.  Also the 1981 Act provides SSHD with the power to revoke a person's ILR or even citizenship if he/she learns that an immigration decision was made with false representations.

Another consideration comes in the form of Article 8 of the European Convention on Human Rights.  This can be used by a court to force SSHD to issue a visa regardless of his/her objections.

Lastly, there is a body of case law (where people have been to court over this question) and previous readings from the Policy Unit on how some of these various facets should be interpretted.  These can also be consulted to see if there's anything relevant to an individual's circumstances.


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Re: FAQ Tip: Applicants with a criminal history
« Reply #1 on: July 20, 2011, 04:31:47 PM »
I was making myself sick with worry about an incident from the past, and was getting myself totally worked up into a frenzy trying to determine how UK criminal law would interpret US criminal law in my situation.  The more research I did, the more confused and panicked I got.  I finally consulted a UK immigration lawyer, and I have to say it was money well spent, as I now know exactly where I stand with the UKBA.   I discovered that my interpretation of the confusing "spent convictions" concept was incorrect, and it was such a total releif.  It really is not worth attempting to figure this stuff out on your own, and if you consult with a lawyer BEFORE you apply for the visa, it's a lot easier than having to track a good immigration lawyer down, explain your situation and try to do damage control after you have been rejected.  A good lawyer will also give you his/her advice in writing after your consultation, which you can use in case of any issues that may come up.  Use the professionals here on the forum for recommendations of lawyers that can help you, it is so worth it.
Moved from Washington DC to the Orkney Islands November 2007
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Re: FAQ Tip: Applicants with a criminal history
« Reply #2 on: July 21, 2011, 05:08:19 PM »
Hi Transpondia,

Thanks for all the great posts you put up! Maybe you can help me with a recent post I put up which has yet to get a reply.

I have 2 speeding tickets from the US and I am planning on submitting a copy of my driving record as evidence on my spouse application. Do you think this will suffice? Or would it be necessary to get the speeding ticket information from the actual courts? I appreciate any insight you might have.


Re: FAQ Tip: Applicants with a criminal history
« Reply #3 on: July 21, 2011, 08:53:49 PM »
If you pm me with the link, I can have a look.


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Re: FAQ Tip: Applicants with a criminal history
« Reply #4 on: October 27, 2011, 03:48:57 PM »
I wonder if you could help us out...

I'm British, my husband is American.  We married in May 2010 (1 year 5 months ago) in the UK, him with a fiance visa.  He was granted the FLR around August 2010.  We are now looking into what we need to do next, e.g. the ILR. 

The complication however is that my husband had a DUI in March 2010 (in the US, before he moved here, after fiance visa was approved).  The DUI was disclosed on the FLR application.  On the Border Agency website it states that you can apply for 'Settlement' if "you do not have any unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974", from what I can tell, his DUI would either be spent after 5 years or 7 years, either way not in time to apply for the ILR.

If there is no way that he will be granted Indefinite Leave to Remain with his DUI unspent, is an extension to his FLR the only way forward if we are to stay in the UK?

Many thanks in advance for your time.


Re: FAQ Tip: Applicants with a criminal history
« Reply #5 on: October 27, 2011, 04:22:11 PM »
Yes, it's quite likely, but in these types of situations where anything at all complicates a settlement application, you would be better off working with a specialist solicitor.


Re: FAQ Tip: Applicants with a criminal history
« Reply #6 on: November 23, 2011, 01:00:10 PM »
Small update.

Parliament opened a debate last week on exceptions to the Rehabilitation of Offenders Act 1974.  It looks like they might want to modify the act such that some crimes must be disclosed in certain situations even though they are technically spent.  It doesn't have to do specifically with immigrants and they haven't debated whether or not their proposed changes are retrospective.

Apparently this is all off the back of a consultation that took place last year.

It's in the Hansard for those inclined...


Re: FAQ Tip: Applicants with a criminal history
« Reply #7 on: December 19, 2011, 08:36:04 PM »
Update.

For people considering a strategy of non-disclosure, consider this...

4.111 As part of the Memorandum of Understanding that the Agency has with DHS for having applicants’ biometrics captured as part of their visa application, any applicant applying in the USA is vetted against the DHS national fingerprint database. RALON, in New York, serves as the central point of contact for the collation and dissemination of intelligence relating to biometric matches. Since it was implemented, this process has identified applicants who have criminal records in the USA. RALON provided us with an example of one case where information from the biometric capture process was  passed to the USA authorities, which resulted in the arrest of an individual.


...extract from the Chief Inspector's report, 19 Dec 2011


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Re: FAQ Tip: Applicants with a criminal history
« Reply #8 on: December 19, 2011, 08:48:55 PM »
I have a little different situation.  I may need to go back to the UK for less than 1 week trips.  I was in the UK and refused a breath test so they charged me as such and fined me 700 pounds.  I did not pay it. 

Will I be flagged at the airport?  I will not be driving when I am there so that is not a problem, but will not paying affect entry?


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Re: FAQ Tip: Applicants with a criminal history
« Reply #9 on: December 19, 2011, 09:08:01 PM »
I have a little different situation.  I may need to go back to the UK for less than 1 week trips.  I was in the UK and refused a breath test so they charged me as such and fined me 700 pounds.  I did not pay it. 

Will I be flagged at the airport?  I will not be driving when I am there so that is not a problem, but will not paying affect entry?
They don't care if you won't be driving. When you speak to a border agent, they will refuse you entry if they see that you haven't paid a drink driving fine. Whether or not they'll be able to see this, I'm unsure of, but a warrant would have been put out for your arrest.


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Re: FAQ Tip: Applicants with a criminal history
« Reply #10 on: January 04, 2012, 04:30:29 AM »
When submitting information about a criminal record, what all should you submit?

I was a gas station clerk and sold wine to a minor in one of those sting things my local county did. since it was my first offence I was able to do PTI but due to personal reasons I was never able to complete it. I went back to court and paid the fine for the original ticket but the only documentation I have is the original court papers were I was sentenced to PTI as well as the original ticket - do I need to get in contact with the local court and get the final ruling papers? I didn't serve any jail time, I simply just paid the fine.
Met Online: Jan 2010
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Re: FAQ Tip: Applicants with a criminal history
« Reply #11 on: January 06, 2012, 03:14:04 PM »
Got an email with a request for my court records.  I've got papers from one court. It's only got the codes of the violations and the prices that I paid for the fines. Is that fine? I'm driving to a court 12 hours away so that I can fax them in ASAP.


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Re: FAQ Tip: Applicants with a criminal history...but can't find US records
« Reply #12 on: January 08, 2012, 12:18:40 AM »
Thanks for this information...I have a unique situation that I wonder if I should hire legal help? first thought I'd start with some guidance here...

I had a DUI 25 years ago. I have since moved to two different states in the US and I have no record of the conviction personally. So I called the state where I received the ticket and since I don't have my original driver's license, they sent back my paperwork/unprocessed check saying they can't find any record. I do not have any such paperwork, insurance forms, etc showing my old driver's license since I've moved out of that state 20 years ago!

I panicked and purchased a credit report online to see if I could provide some backup paperwork, but nothing came up!

Since it's been 25 years and no record/convictions of any sort since, should I NOT report it on my visa application? I'm in panic-mode now since I had planned to file my application today! Any advice most appreciated before I call the UK immigration lawyer! Thanks, Mrs. BB  :-[


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Re: FAQ Tip: Applicants with a criminal history
« Reply #13 on: January 28, 2012, 08:12:24 PM »
so if person been convicted 12 month sentence do have to wiat for spent conviction even if u merried british citezen?


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