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 unspent conviction.
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.
If you have had a suspended prison sentence, for nationality "good character" purposes it will be treated by the Home Office as a custodial sentence.
Thank you so much for your time and response.
The problem is the recent changes have not been tested.
Law is supreme and while they can increase the threshold of waiting period, they cannot have floating definitions for different forms.
For instance for ILR : a person who receives a suspended sentence which is not activated has to wait for a 2 year clear period before applying.
I believe the same clear period increases to 3 years in the case of British Naturalization.
The problem is the guidance was not drafted properly.
Previously under the ROA 1974 suspended sentence was deemed to be a prison sentence and the spent period was 7 years. The LASPO Act 2012 made the same redundant for immigration purposes and also revised the spent period for most of the thresholds to much shorter periods.
For instance a suspended sentence order of less than 6months becomes spent in 2years and 6months time.
Only time can tell. Different lawyers have different opinions on the subject and the modernized guidance cutting across sections clearly defines a suspended sentence.
When it comes to naturalisation as a British citizen, the good character requirement does treat a suspended sentence as a custodial sentence.
Thank you for your prompt response. The specific context is as under;
The home office has issued guidance on their website in several places on suspended sentences. I am posting the links below;
1) General Grounds for Refusal
RFL10 - When can I refuse on the grounds of criminality?
RFL10.3 When can I refuse on the basis of non-custodial sentences? Here they say a non custodial sentence includes a suspended sentence.
Page 69 of 151
A suspended prison sentence must be treated as a non-custodial sentence.
However, an exception occurs if the sentence is subsequently ‘activated’.
3)Automatic Deportation Guidance issued Based on UK Borders Act 2007 and Immigration Rules
The definition of imprisonment for the purposes of this act does not include suspended
sentences unless a court subsequently orders that sentence or any part of that sentence.......
But the Naturalisation Guidance was talking of only thresholds.
Question and Context is
a) If a suspended sentence order was not activated then will it be considered as non-custodial sentence?
b)The guidance issued on their website is based on immigration rules and is applicable to all decision making isnt it , though thresholds may differ. For e.g for ILR a non-custodial sentence should have not occured in the past 2 years, whereas for Naturalisation it is 3years. But the guidance on suspended sentences and others cannot be interpreted differently for different applications isnt it?
Nationality applications made by those who have received custodial sentences of up to 12 months imprisonment in the last 7 years should be refused until the 7 years have passed. This also applies to suspended sentences.
Concerning "yardsticks", different rules may apply to different immigration applications, but some rules have a generic application. It is not possible to be more specific than this without knowing the context.
Now that they do not take spent or unsent as per the ROA Act 1974 into account for the purposes of good character two general queries for you.
a)How is a suspended sentence order of less than 12months treated which has become spent under the new changes of LASPO 2012 which is to come into effect in Nov 2013.?
If the sentence was not activated and all the requirements complied with and the penalty discharged at the end of the sentence.
b) Also the guidance on their website, is it common to all immigration issues or can they apply different yardsticks for the purpose of different purposes.
It is not possible to advise explicitly on individual cases without knowing the full background and facts. The advice below therefore is generic; you will have to decide whether it applies to you and if you are not sure take face to face legal advice.
There is no absolute definition of good character for the purposes of nationality applications, so caseworkers operate to guidance provided by UKBA, and some discretion is necessary, particularly as not all circumstances are covered by the guidance. Key issues:
Guide AN to nationality, page 8 states "your application is unlikely to succeed if you are an undischarged bankrupt." Although someone on an IVA is not a bankrupt, IVA is a formal alternative to bankruptcy. As such, anyone under an undischarged IVA would be unwise to pursue a nationality claim until the IVA had been formally discharged.
Parking fines come in all shapes and sizes and some are issued by private landowners rather than public bodies. What type of fine will depend on where it was committed and who issued the ticket. This in turn may affect how it is assessed. An extract from the UKBA caseworker guidance is below:
"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."
This definition of Fixed Penalty Notices appears to encapsulate Penalty Charge Notices as well which are often issued for parking offences. You must therefore find out if you were issued FPNs/PCNs or not.
If they are FPNs or PCNs, then they may well be taken into account. The rules are slightly ambiguous on this; the extract above suggests "numerous" FPNs are required, before being taken into account, but the guidance in Booklet AN is more explicit:
"We would not normally take FPNs 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 until you have no more than one FPN in the 12 month period before applying."
Even this guidance is not unequivocal, in that it states that "you may wish to wait".
Bottom line is that any application made whilst more than one FPN /PCN has occurred in the last year will carry inherent risk.
Finally, note that there is a general duty of disclosure if you are in any doubt;
"If you are in any doubt about whether you have done something or it has been alleged that you have done something which might lead us to think that you are not of good character you should say so (Booklet AN page 17)."
I'm currently on an IVA and I'm thinking to apply for naturalisation. I have completed all my payments towards my IVA in May 2012 and awaiting for my supervisor to send the discharge certificate and according to my insolvency practitioner, discharge process is in progress and the delay is due to PPI claim progress and I'll be getting certificate of completion soon.
As far as I know, I don't have any CCJ's under my name or any other criminal records. However, I had two £60 parking fines in the last year, one in November 2012 and one in March 2013 I was not asked to go to courts . I got both in the post and paid both fine with in 14 days and no points were added to my driving licence. I have a clean driving licence and never had any points.
My questions are , does my current IVA status and two parking fines affect my naturalisation application? If I send the application before I get discharged, will it get rejected?
I was unable to find the above details on UK Boarder Agency website and I would be very grateful if you can clarify the above. Hope to hear from you soon.
Such convictions are now assessed against a new set of criteria, published in January this year. These state that a non-custodial offence will result in a refusal if the conviction was within the last 3 years. So in this instance, the rules have got easier (it was 5 years). Therefore, your offence should not be taken into account after October 2013 - once the 3 years have elapsed. The previous advice you were given applied to the old rules that were in force under the Rehabilitation of Offenders Act. Assuming you meet all other requirements for naturalisation, you should therefore be eligible from October 2013.
I have a driving conviction LC20(3 POINTS AND £140 FINE) BY COURT.
I DROVE A MOTORBIKE WITH L PLATE ON MOTORWAY, RULE SAYS WITH CBT(COMPULSURY BASIC TRAINING) I CAN RIDE MOTORBIKE EVERYWHERE ECCEPT OF MOTORWAY.
I DIDNT KNOW THAT I WAS NOT ABLE TO RIDE A MOTORBIKE WITH MY CBT LICENSE ON MOTORWAY.CBT ALLOWAS RIDER TO RIDE A MOTORBIKE UPTO 125CC WITH SHOWING L PLATE.
MY CONVICTION WAS IN COURT ON OCTOBER 2010, MY ILR APPLICATION WAS SUCCESSFUL ON JANUARY ,2012, I APPLIED FOR NATARALIZATION ON NOVEMBER 2012 AND WAS REFUSED DUE THE FINE CONVICTION AND THE LETTER I RECEIVED FROM THEM ADVISING TO WAIT AND APPLY ON OCTOBER 2015 WHEN SPENT.
NOW MY QUESTION IS UNDER NEW RULE WHEN CAN I APPLY FOR NATURALIZATION APPLICATION? NEW RULE IS CONFUSING, IT SAYS IF CONVICTION WAS IN LAST 3 YEARS APPLICATION WILL BE REFUSED.
SO WHEN CAN I APPLY.
PLEASE GIVE ME ADVICE.
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