Post date: 29 Oct 2012
It comes as a surprise to many applying for indefinite leave to remain in
the UK or for naturalisation as a British citizen that they do not meet the
"good character" requirement and therefore potentially face their
applications being refused or deferred. This is often because they have an
There have been a number of high-profile cases recently concerning British
soldiers from Commonwealth countries or elsewhere who have been in breach of
the good character requirements and whose cases are still ongoing. The
same elements of the press can often be found clamouring for foreign
criminals to be expelled whilst also expressing disgust at the shabby
treatment of foreign British soldiers with minor convictions when they have
fought for this country. There is not necessarily a contradiction in this, but
it does illustrate how important it is for the authorities to be able to
exercise discretion and to be able to treat each case on its merits. The worry
is that as the screws tighten on immigration, discretion becomes an
ever scarcer commodity, with justice and fairness both becoming casualties.
It is clearly reasonable that the immigration services take someone's good
character and background into account when assessing their case, but it must be
done fairly. For instance, if someone receives a fixed penalty notice (FPN) for
speeding, and pays it, this is not a conviction because there has been no
admission of guilt and no testing of the case in a court (although the UKBA
will take into account more than one FPN in the 12 months before an
application). The same person who challenges the FPN and loses, or who elects
to go to court and pleads guilty in the hope of receiving a different penalty,
or who fails to react to the offer of a FPN, may receive a conviction,
potentially changing their status from the immigration perspective. Yet whether
they are convicted or receive an FPN, the offence is the same and cases
that go to court very often have no bearing on character.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 potentially adds to the woes of those with convictions by declaring that for "certain
immigration and nationality purposes" convictions which previously became spent
under the Rehabilitation of Offenders Act 1974, no longer do so and will
continue to have to be declared. The practical effects of this legislation have
yet to be tested, but it apparently signals an intention to become even more
rigorous when dealing with immigration cases.
The key message is that if you have an immigration issue pending and get a
fixed penalty notice it is usually going to be best to pay it immediately and
not challenge it. Don't get any convictions and if you can avoid it perhaps
don't drive a car, since this is probably the most common cause of a
conviction. Above all, if you do have a conviction and are worried that it
might affect your immigration status, take proper advice.
Nationality applications now routinely attract a refusal for seven years from the end of the sentence if the applicant has been sentenced to a custodial sentence of up to 12 months' imprisonment. You will be eligible therefore in 2017 or thereabouts, depending on the date of the end of your sentence.
I need clarification on the issues of conviction.
I was convicted in 2010 for deception obtaining leave to remain in the UK. I was sentenced for 5months and I spent half of that in prison. My question is: How long will it take for me to apply for British citizenship?
Thank you for your help.
The current rules are that:
If you have received a custodial sentence of four years' imprisonment or more, your application should be refused, regardless of when the conviction occurred.
If you have received a custodial sentence of between 12 months and four years, 15 years must pass between the end of sentence and you applying for citizenship.
It seems from your email that you were sentenced to four years in prison. If this is so, then your application will be refused. If, however, it was less than four years, you would be eligible to apply in 2019, or thereabouts, depending on the exact date of the end of your sentence.
These are the basic rules. If you think there are special circumstances that mean that even though you were given a four-year sentence, discretion should be exercised, you will need to consult a specialist lawyer for advice. However, the reasons would have to be exceptional.
In 2001 I've been charge for Burg-lie which is very (explanation to it)I've been in prison for 2years out of four year I have been advise from ukb 2008 I have to Waite and aplay for nuatrlization after 2011 but can I apply or not if my sintence never spent how long I may have to wait?and that only one convaction I have got since please answer as I've been waiting for mor than decade now how after how long I may apply??????thank u
There is a mechanism for reconsidering naturalisation refusals. You apply using form NR which you should have been sent with the refusal. You have nothing to lose by doing this except the £80 fee and whatever your solicitors charge you for making representations for you. Whether this is money well spent will depend on the reason for refusal and your chances of success. The UKBA guidance on good character changed in January and you must ensure you are aware of this before you make your decision.
From what you have said, it seems that you may have had some sort of short custodial sentence (less than 12 months) 5 years ago, since the new guidance states that such applications should normally be refused unless 7 years have passed since the end of the sentence. If this is so and such sentence were imposed by the civilian authorities, it will be difficult to argue with. If on the other hand it were imposed by the military authorities, whilst this still must be taken into account, the rules differentiate between criminal conduct and non-criminal conduct (i.e. military offences only). If you therefore have a sentence from a military source, you may therefore have an arguable case. But without knowing the reason for refusal I am guessing. Take professional advice and make sure your advisors refer to Section 2b of Chapter 15 of the Immigration Directorate Instructions which gives guidance on dealing with military offences.
hi just had my application refused for naturalization base of good character am serving in the british army it is about something that happen five years ago when i apply before they said i should wait for 5 yrs now i waited and send a new application they refused it am getting a solicitor to send a form for them to reconsider it is this best to do waiting on your response thanks
I have been reading for the last couple of months that the govt. is cutting down the rehabilitation period for offenders like court fines from 5 years to 12 months. Most website say it will become law in spring 2013, is there true and when can we expect that date when this becomes law?
Thank you for your comments.
DBS searches are normally produced in order to demonstrate someone's employability. They are not therefore necessarily definitive in terms of listing all offences. In any event, the guidance is clear; you should disclose it (see Form AN and the accompanying guidance leaflet). This means you will probably be refused if you apply before three years have elapsed since the conviction. There is a discretion to disregard minor offences (see guidance AN), but driving without a licence may not fall in this category.
Suspended sentences are normally treated as custodial sentences, although there are some exceptions (e.g. UK Borders Act 2007). However, for the purposes of naturalisation, our understanding, based on the latest guidance to UKBA caseworkers, is that suspended sentences are treated as custodial sentences. Although the guidance does not state this explicitly, it is implied because suspended sentences are not included in the list of non-custodial sentences. Furthermore, this remains in line with previous guidance.
General grounds for refusal indicates that suspended sentence is counted as non custodial sentence unless the sentenceis is activited, or doesn't it apply to Naturalisation
I recently recieved my DBS (Disclosure and Barring Service), it stated that I had no police records of convictions, cautions, reprimands and warnings. However, in 2011, I was given a fine (which is a conviction I believe) for not paying my FPN, which came as a result of driving without a valid license. I'm currently applying for naturalisation, however I am not sure if I should disclose the fine as part of the good character requirment, in the naturalisation form. Your advice would be greatly appreciated.
We cannot advise on the individual aspects of every case by email as we seldom have possession of all of the facts. However, generic guidance on good character is below:
1. FPNs will not normally be taken into account unless you have more than one in the last 12 months. This is the latest guidance to UKBA caseworkers. However, you should still declare them and send in your paper driving licence to UKBA showing endorsements. For FPNs not to count you must have paid them on time and not contested them unsuccessfully in court.
2. Latest guidance to UKBA caseworkers on non-custodial convictions (which includes fines awarded by a court) is routinely to refuse the application if the conviction was in the last three years.
3. If you have such a conviction, you will therefore have to wait until the three years have elapsed before applying for ILR or naturalisation. This does not necessarily mean you cannot extend your stay in the UK, but this will depend on the circumstances. If you are in this position, you must take proper face-to-face legal advice as to the way ahead.
4. Key in all cases is to be honest, answer the questions on the application form and if in doubt declare it. If you are found to have been dishonest in your declarations this will weigh against you. Note also that there is no statutory definition of good character for nationality purposes, so discretion exists. However, the above guidance represent the norms applied in the vast majority of cases.
In 2011, while I was driving with my provisional licence, the police stopped me and gave me fixed penalty notice, LC20. I got 3 points and £65 fine. I didn't get any letter from court, case didn't go to the court. So I understand, this is not a conviction, just a FPN. In this case, am i able to apply for british citizenship? Is it gonna effect my application? or should i wait for 3 years? I won't tick the criminal conviction box but just write about my FPN and add the copy of my paper part of driving licence. Am i right?
Hi My husband got fixed penalty notice for N10 code as he was driving his friend's car on a comprehensive license but his friend did not have a insurance on his car. He got the fixed penalty
(£ 200 and six points) this happened in Jan 2011 and we are planning to apply for our naturalization in April 2013.
I would like to know if this will jeopardize our naturalization ? or will it be okay as it's not written as criminal conviction and my husband did not get any summons form court but just a fixed penalty notice.
We want to be really sure about it. Hope to hear from you soon!!
I am really lost now with the new changes to the Good Character requirement. I really need an expert opinion on an issue and I hope you will be kind enough to help out.
I was convicted of driving without a licence in January, 2009 and fined accordingly. It's over 4 years since that conviction but I'm not sure if I can apply now for citizenship (under the new rules) or still have to wait until January, 2014 (under the ROA) to put in my application.
Someone help, I came to the uk, when I was17 and seek asylum in 2009 was given refugee, to renew in 2014, so in 2011 I was charged with reckless driving, refusing breath test 18month ban and a fine, life just get worse last month I was charged again with failure to provide breath test and preventing of justice. My question is if it says I will be refused ilR then what is there until they are spent, is there some kind of extension please help
I made an application while my appeal was pending and the application was void by the UKBA as no new application were allowed during an appeal. but by this time my appeal was decided against me and the void application has been returned to me by UKBA about one month later of the appeal decision. within nine days (this is because that week was christmas holiday) i made another application and that application remained with UKBA for five years but end of the day they granted my three months leave to remain which i subsequently extended. now i am planning for my ILR in accordance to ten year residency rule.
my question is will it be counted as lawful residency?
i had a driving conviction in july'09 for driving without insurance. From your discussion what i understand, i am eligible to apply ( please correct me, if i am wrong). will this conviction going to be a big factor? what are the chances for success? Thanks in advance...
I had a fine of £130.00 for failing to produce a valid insurance on a car. I was not driving the car that was in 20/02/2004.
And I had a caution for using an uninsured vehicle and tampering the tax disc from 14/08/2002.
I have to apply for naturalization now.
Will they deny me entry for Good character element .
There is a lot here to consider and it is difficult to advise without seeing the detail. However, Section 3 of the Guide AN states that "you must give details of all civil judgements which have resulted in a court order being made against you, as well as any civil penalties under the UK Immigration Acts. Therefore, at the very least, those " few of them" that went to court in your case will need to be declared. Similarly, the PCNs in 2012 may need to be declared if they are in the last 12 months and any in 2013 will certainly need to be, regardless of whether they went to court or not.
In any event, you are strongly recommended to seek proper face-to-face advice on all these incidents, with all the detail to hand so that you can get precise guidance on the effect of each one.
In 2011 I had nine penalty charge notice all about parking few of them gone to court and then to baliff and all been paid off.
in 2012 i had three penalty charge notice no court or baliff all paid off
In 2013 i had one none i am applying for ILR in june do i have to declare all the penalties in the application form ?
Please Advice. Thank you
From what you say, your cases are all outside the three-year threshold. This is helpful, but in view of the number of offences and type is not definitive. You will still have to declare them and it is possible that the UKBA caseworker will take a 'public interest" view and decide that taken as a whole, they still constitute a reason for withholding citizenship. This is particularly as they include a drink driving offence and driving without licence/insurance. There will therefore be no guarantee of success and you will need to explain why you had such a rocky period.
I have over 8 traffic offences that include drink driving/driving without licence and insuarance and driving whilst disqualified. And a caution for public nuisance and damaging property (a dispute between me and any x) with roa I was suposse to wait 2 more years to make five years for the last conviction and aply....now because of the threshold all is out of the three year threshhod , a smile there but my headache is will get citizenship since roa is out and its all up to the case wokers discretion. Even if you are not in the three year threshhold can tthey refuse you for having so many convictions ???? Please help me.
You are right that the AN form mentions that FPNs do not have to be declared. This is confusing because the Guide to Form AN states that "FPNs will not normally be taken into account unless you have had more than one in the last 12 months. In that case you may wish to wait to make your application".
My view remains as expressed previously; if you applied with more than one PCN in the last 12 months, you risk being refused. Furthermore, if you don't declare them and they are discovered, then that will also count against your "good character" and could also result in a refusal. It is safer to wait.
Hi, thanks for the clarifications. However, still unclear as the AN form explicitly states that FPNs (leave alone PCNs) do not have to be declared. How can they tell you to not declare and then look for more than 3 FPNs in a year? Is this only those FPNs that show up in a Police search? If that is the case, then it would be only FPNs and not PCNs as the latter don't show up in any search, as they are given out by local councils. Thank you
Rules are slightly confusing, but below is an extract from the latest guidance issued in Jan 13.
It specifically mentions PCNs in the first paragraph, but not the second. However the implication of the first paragraph is, in my view, that they will be taken into account. This is logical as there are instances when a PCN or a FPN can be issued for the same offence and it would be unjust if only the culprit with an FPN had his immigration status affected. I think therefore that you would be wise to wait until your first two PCNs have expired.
Fixed Penalty Notices
3.5.2 A fixed penalty notice (FPN), penalty charge notice (PCN) or penalty notices for disorder (PND) are a way of the criminal justice system disposing of fairly minor offences without the need for a person to attend court. Receiving one does not form part of a person's criminal record as there is no admission of guilt.
3.5.3 In determining whether an applicant meets the "good character" requirement, caseworkers should not normally take into account fixed penalty notices, unless the applicant has received numerous fixed penalty notices in the last 12 months, and this would suggest a pattern of behaviour that calls into question their character. Equally, a fixed penalty notice would not be disregarded if there were criminal proceedings for failure to pay and his led to a more serious penalty as a result. If an application is refused on the basis of either of these reasons, the applicant should be advised that he or she can reapply at a time when he or she does not have more than one fixed penalty notice in the twelve month period before making an application.
Thanks for your prompt reply. My PCNs were all issued by the local council. None were recorded on my drivers license as these were issued by the council & paid off immediately. I have not been issued with a FPN. Can I apply under the new guidance? Thanks
The terms FPN and PCN are often used synonymously, but the latter is also sometimes used more widely. From what you have said, it seems likely that your PCNs might well be in the same category as FPNs, but without seeing the detail it is not possible to give definitive advice. Are the offences recorded on your driving licence and if so as what?
Thank you for your comments. I have a clarification: after the new Dec 2012 rules, are Penalty Charge Notices (PCNs) considered the equivalent of Fixed Penalty Notices (FPNs)? I have 3 PCNs in one month due to straying into a bus lane and have paid all 3 immediately. Case worker guidance says that more than 1 FPN in the last 12 months is grounds for refusal - does this apply to PCNs also? What about parking tickets issued by Private Companies such as NCP, which are not even a PCN? Many thanks
The rules have changed again and this will be to your advantage if your offence only attracted a fine and disqualification (and no custodial sentence).
Applications made on or after 13 December 2012 which feature a criminal conviction will no longer be assessed against the Rehabilitation of Offenders Act 1974. Instead they will be measured against a new set of sentencing limits.
These state that for a non-custodial sentence, applications should be refused if the conviction occurred in the last 3 years.
You will still have to declare the conviction but it no longer attracts the 5-year rehabilitation period.
You should therefore be able to apply in May 2013 and all other things being equal, have a good prospect of success.
You should however take professional advice nearer the time; both to ensure that the rules haven't changed again and to verify how the new guidance is being implemented.
I had a driving offence on 19 Sep 2010 and convicted with DR10 in October 2010. I would be looking at applying for naturalisation in May 2013 but have contacted several people in this regard and many have told me that my application is unlikely to be successful because of the drink drive offence since i had to pay a fine of Â£350 which attracts a rehab period of 5 years. My concern is that since the offence was in 2010 and the rule came into play in April 2011, does this affect my situation? Again there are issues of rules changing frequently and I am at a loss to understand if these affect my case. There are also pointers and issues of discretion and caseworkers are advised to deal with cases as a case by case when considering discretion. How would I go about this?
Reply to RAJA: That is our understanding. Suspended sentences are treated as custodial sentences for other purposes and we would expect the same to apply here.
Reply to Samantha Thomas-Domingo: Difficult to advise without knowing the specific facts. In some ways the new rules are helpful in that they establish norms for immigration decision makers, and still allow some discretion for exceptional cases. Without knowing what your husband did however, it is not possible to give specific advice other than that you must take proper professional advice before reapplying.
Dear Gherson, is a suspended custodial sentence (three month suspended for 1 year) treated as custodial under 12 month and as such 7 year waiting period?
Reply to AM:
It will depend on the offence and the punishment.
Latest guidance from UKBA to their caseworkers is that for non-custodial offences, applications for nationality should be refused if the conviction was within the last three years.
On this basis you could apply after August 2013 with a good prospect of success provided all other aspects of the application were in order.
The guidance does also state though that caseworkers have discretion to disregard minor convictions if the applicant is otherwise of good character and if the offence resulted in a binding over order, absolute discharge, admonition, relatively small fine or a fixed penalty notice (which does not count as a conviction). However, such discretion should not be applied to cases involving recklessness, drink driving, excessive speeding, driving without insurance or whilst using a mobile.
Bottom line: routine driving offences which did not attract a custodial sentence will not be taken into account after three years, so long as the applicant is otherwise of good character.
This article couldn't be more apt for my situation right now.
My husband won an appeal for a spousal visa which was initially refused based on past criminal history and sentencing of such it will never be considered spent. We have a child and one on the way, we are both working and he has a good character, he also plans to apply for a presidential pardon though this will not expunge his record. He has since had one extension and i'm getting conflicting adive that when his visa expires he should apply for ILR as he has been in the country legally for 3 and a half years. However i am worried that despite the appeal, no discretion will be exercised and it will be a mandatory refusal. We are kicking ourselves for not having the funds to apply before the rule change but now are stuck- do we apply for extenstion or ILR with hope?
I have a driving conviction from Aug-2010. At about the same time, I was granted with ILR. Do I have chance for applying for citizenship considering the changes in rehabilitation act.
I understand that UKBA is excluded from that act but are they still going to follow the old one?
At last! Someone who understands! Thanks for posting!
Your question has two parts:
a. Were the authorities right to refuse your last application for ILR? Yes they were because although the offence was committed before April 2012 your application for ILR was only made after the rule change in June 2012. You were therefore caught by the rule change.
b. WIll you be able to apply for ILR in future? It is always difficult to advise about the future because the rules change so frequently - there have been nine significant changes so far this year. Also, the rules that apply may depend on what category of migrant you are. So this comes with the general caveat that you must continue to check right up until you apply in 2014 to ensure that you understand the up-to-date rules.
The most recent change was put before parliament on 22 November 2012 and comes into effect on 13 December. This rule change affects your case. Hitherto, any unspent criminal conviction has automatically resulted in a mandatory refusal of ILR, as you found out. However, the new rules remove the requirement to have no unspent convictions before applying for ILR. Instead, amendments have been made to the "general grounds of refusal" which, in the case of those applying for ILR, states that (in addition to provisions relating to serious offences), persons are to be refused if:
" 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."
Thus, you will still be refused if you have a conviction such as yours within two years of your next application.
However, this does not let you off the hook entirely because the next paragraph dealing with those who should normally be refused (as opposed to will definitely be) refers to :
"the undesirability of permitting the person concerned (i.e. the applicant) to remain in the light of conduct (including convictions that do not fall within paragraph 322 1C- i.e. those referred to above), character or associations."
Assuming the rules don't change, you will therefore be in a better position than you have been, but grant of ILR will be discretionary. You will need to convince the authorities that your indiscretion is behind you and there is good reason to grant an extension.
Thank for your article and further advise therein. It was so helpful. I recently applied for ILR and I was refused based on my driving conviction (No insurance/Licence) in February 2011. Although, the offence was committed in November 2010 but i was only convicted in 2011. I was refused on this ground and I was given further leave to remain till 2014. My concerned now is that my offense and the conviction was before the immigration rules on criminality threshold changed on 6th April 2011, I was astonished to know that this rule was still applied to my case when I applied in June 2012.. I believed I had committed the offence ever before the changes in immigration rules on criminality threshold and I should be exempted because my offence was committed before these changes. I am not sure whether they got their decision wrong or they made right decision. Now, I’m really concerned about this tarnishing decision because I am about to start my degree in January 2012 which is funded by NHS. Now I have further leave to remain (expire in 2014) after completed 2 years probation since 2010. I don’t know whether I will still be qualify to continue my training...please can you advise me???????? Thanks