General grounds of refusal - criminal history

[Tsst]

Hi,

Would someone know more about the clauses 320(18) and 320(18A) with regards to the general grounds of refusal for an application with a criminal history for which he or she received a non-custodial sentence. These two clauses seem to be giving different rules for discretionary refusal.

320(18) - https://www.gov.uk/government/uploads/s ... .0_EXT.pdf ( page 35)

The applicant has been convicted of an offence either overseas or in the UK which:
 if committed in the UK:
o would be punishable with imprisonment for at least 12 months, or
 if committed outside the UK:
o would be punishable by imprisonment for at least 12 months if the offence had happened in the UK.

320(18A) - https://www.gov.uk/government/uploads/s ... MASTER.pdf
( page 5 )

(18A) within the 12 months prior to the date on which the application is decided, the person 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;

As an example quoted for refusal under 320(18) clause - https://www.gov.uk/government/uploads/s ... .0_EXT.pdf ( page 52)

For example, dangerous driving is punishable by up to six months imprisonment if dealt with as a summary offence. The sentence rises to a possible two years imprisonment on indictment. It may be appropriate for you to refuse under paragraph 320(18) regardless of the length of sentence.

With this example any serious driving offense which results in a non-custodial sentence would be appropriate for refusal anytime since the date of conviction because if they are dealt with as an indictable offense its max imprisonment would be > 12 months. When would the clause 320(18A) which calls for refusal if the conviction occured within 12 months prior to the date of application kick in ?

Thank you for perusing through this query of mine

[Amber]

Under what category are you applying?

[Tsst]

I will be applying for a spouse visa to join a British National

[Amber]

Then do note:

A320. Paragraphs 320 (except subparagraph (3), (10) and (11)) and 322 do not apply to an application for entry clearance, leave to enter or leave to remain as a Family Member under Appendix FM, and Part 9 (except for paragraph 322(1)) does not apply to an application for leave to remain on the grounds of private life under paragraphs 276ADE-276DH.

[MPH80]

But also do note:

S-EC.1.4. The exclusion of the applicant from the UK is conducive to the public good because
they have:
(a) been convicted of an offence for which they have been sentenced to a period of
imprisonment of at least 4 years; or
(b) been convicted of an offence for which they have been sentenced to a period of
imprisonment of at least 12 months but less than 4 years, unless a period of 10 years
has passed since the end of the sentence; or
(c) been convicted of an offence for which they have been sentenced to a period of
imprisonment of less than 12 months, unless a period of 5 years has passed since
the end of the sentence.
Where this paragraph applies, unless refusal would be contrary to the Human Rights
Convention or the Convention and Protocol Relating to the Status of Refugees, it will only be in
exceptional circumstances that the public interest in maintaining refusal will be outweighed by
compelling factors.

However, given the point here is that you are asking about a non-custodial sentence - you should be fine.

[Tsst]

Thank you for your replies. I went through the refusal clauses that would be pertinent for spouse visa.

But just curious. If I were to apply for a work visa how would the above mentioned refusal clauses be construed ?

[Tsst]

Could a 1 and 1/2 year old drink driving conviction result in a discretionary refusal when applying for a spouse visa from outside the UK? I was convicted in March 2013 and received a fine + disqualification. As specified in the refusal clause it should be refused if the date of conviction was within 12 months of the date of application. But could they refuse it based on the fact that it is unspent?

Post conviction I have done quite a bit of work in writing articles in online media on serious consequences of a drink driving conviction in one's life. Also done a lot of work unofficially in spreading this message around verbally to the community. I dont see any mention of character references or such unofficial work in the rules, but would it have any positive impact on the application if mentioned given that the refusals are discretionary and not mandatory?

Thank you again for your time.

[Amber]

The rules you quoted at the beginning were not 'pertinent' for spouse leave.

[Tsst]

Are non custodial sentences not factored in for spouse visas?

S.EC 1.5 does have the same clause as 320(18A) for non-custodial sentences - the 12 month period from the date of conviction for discretionary refusal.

[Amber]

Non custodial sentences should not be a reason for refusal.