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.