guilty for possession of controlled drug: leave to remain

[romrom]

Hello

My brother has applied for his Tier 1 Graduate Entrepreneur visa extension, and prior to this he was caught by the UK police and is to be appear in court for possession of very small amount of controlled drugs of class A and class B.

However, his lawyer believes he will not be found guilty for the class A, but he might be found guilty for the possession of the class B (cannabis).

The UKBA has now written that they are going to wait for the result of the court, which is not going to take place as yet.

I was wondering if being guilty for the possession of controlled drug class B can result in refusal?

Could you also give advise if this was the case for being guilty for the possession of controlled drug class A, as it might be the question for another person, and possibly to be answered in this post.

Thank you

[CR001]

In my years on the forum, I have not seen a case of drug possession.

It could affect his extension as it is a conviction and HO will wait with his application until the outcome of the court case.

Also, should he be fortunate and get his extension following a conviction, it will haunt him to ILR and definitely be a problem for citizenship.

[zimba]

Criminality test applies to extension and ILR. In the case of a non-custodial sentence, which includes suspended sentences or other out of court disposal that is recorded on their criminal record, refusal of a visa application is probable, though discretionary.
However he will certainly get a refusal for ILR unless 24 months has passed from his conviction. If the sentencing is custodial and leads to him being imprisoned, he certainly will be refused and potentially deported.

[romrom]

In my years on the forum, I have not seen a case of drug possession.

It could affect his extension as it is a conviction and HO will wait with his application until the outcome of the court case.

Also, should he be fortunate and get his extension following a conviction, it will haunt him to ILR and definitely be a problem for citizenship.

He is not going to apply for ILR for at least 2 years time, and from my understanding from the UKBA guide, this only affects the ILR and Citizenship decision if the conviction is within last 2 years.
Source: page 5 and 6 of https://www.gov.uk/government/uploads/s ... __EXT_.pdf

However, my question now is, in this situation, if he is found guilty for possession of control drug class B, do they refuse the application mandatory?

Also as you can see below according to the same source (https://www.gov.uk/government/uploads/s ... __EXT_.pdf) - page 35 (below), it says excluding simple possession!!! So what exactly does it mean?
Does it mean that possession of the drug is excluded, and so the application is not refused?

"For non-European Economic Area (EEA) nationals, in addition to the above, you must also refer to CC when:
 the applicant has served or is serving a custodial sentence of 12 months or more which has been served in either one sentence or as a combination of 2 or 3 sentences over a 5 year period
 from 01 August 2008, the applicant has been convicted of a serious drug offence (excluding simple possession) and received a custodial sentence of any length
 the applicant falls under the provisions of automatic deportation (commenced 01 August 2008) under the UK Borders Act 2007 - this will apply when the sentence is one year or more, and:
o that sentence was a single sentence for a single conviction, not including an
aggregate or a consecutive sentence the applicant was still serving that sentence on
or after 1 August 2008
o the applicant has not been served with a notice of decision to deport prior to 1
August 2008
In this definition ‘sentence’ also includes a suspended sentence that is one year or longer, provided any part of that suspended sentence has been activated by a court."

[romrom]

Criminality test applies to extension and ILR.

By extension, do you mean applying for any type of leave to remain visa?

In the case of a non-custodial sentence, which includes suspended sentences or other out of court disposal that is recorded on their criminal record, refusal of a visa application is probable, though discretionary.

Thank you so much for your reply.
When it comes to the discretionary, do they look at the character, behaviour or associations?
As he has been a good person, and has not had any problems or issues before.

I am also not familiar with the criminality wordings much. So does being guilty for possession of drug mean a non-custodial sentence?

Thank you

[zimba]

By extension, do you mean applying for any type of leave to remain visa?

Yes, of course but we are discussing this on Tier 1E forum, no ?

When it comes to the discretionary, do they look at the character, behaviour or associations? As he has been a good person, and has not had any problems or issues before.

Obviously discretionary means HO will decide whether to issue the visa or not. Again it depends on his background, how serious a crime was and the conviction in the court.

I am also not familiar with the criminality wordings much. So does being guilty for possession of drug mean a non-custodial sentence?

No, it means that the conviction did not send him to prison

[noajthan]

By asking

does being guilty for possession of drug mean a non-custodial sentence

OP is actually asking whether a conviction for possession of such a drug automatically leads to or results in a 'non-custodial sentence'.

S/he was not asking what is the literal meaning of 'non-custodial sentence'.

[zimba]

^^ Possession of class A or class B drugs could lead to a custodial sentencing in the UK. That will be determined in the court obviously.

[Casa]

Also for BC application with the new stricter rules for good character see:
"Certain immigration and nationality decisions are now exempt from section 4 of
the Rehabilitation of Offenders Act 1974. This means that it does not matter
whether a conviction is “spent” when assessing good character provided the
application was made in England, Wales or Scotland."

[noajthan]

Hello

My brother has applied for his Tier 1 Graduate Entrepreneur visa extension, and prior to this he was caught by the UK police and is to be appear in court for possession of very small amount of controlled drugs of class A and class B.

...

I was wondering if being guilty for the possession of controlled drug class B can result in refusal?

Could you also give advise if this was the case for being guilty for the possession of controlled drug class A, as it might be the question for another person, and possibly to be answered in this post.

Thank you

Ref: https://www.gov.uk/government/uploads/s ... 4_2016.pdf

Even if you meet all of the conditions of the Tier1(Entrepreneur) category there may be other reasons why we will refuse your application under the general grounds for refusal listed in the Immigration Rules

General Grounds for Refusal
Settlement.

As with Tier 1 (Entrepreneur) leave applications, you will also be subject to General Grounds for Refusal. This means that even if you qualify under the Tier 1 (Entrepreneur) rules there may be other reasons (such as your immigration history, whether you have previously provided fraudulent documents to the Home Office, whether you have been convicted of a serious crime etc) that may lead to the application being refused.

See https://www.gov.uk/guidance/immigration ... or-refusal

So it comes down to questions of criminal law & sentencing policy. Back in a lawyer's court really.

[seasky]

Since adding the genuine entrepreneurs test to some extent T1E is a discretionary visa. Recent success rates have not been high. Is your brothers application -that strong- that it can overcome this added burden of this drug issue?

Applying is a lot of work and expensive.

[romrom]

Since adding the genuine entrepreneurs test to some extent T1E is a discretionary visa. Recent success rates have not been high. Is your brothers application -that strong- that it can overcome this added burden of this drug issue?

Applying is a lot of work and expensive.

Yes, the visa he has applied for is actually the Graduate Entrepreneur, and he is supported by his university.
Generally speaking, they grant leave to remains very quickly for this type of visa, and I am guessing it is not a difficult type of visa.

For graduate entrepreneur visa type, they only need to see the maintenance, and your university supporting letter, and that is a very quick and easy visa type, if your university is supporting you.

[romrom]

By extension, do you mean applying for any type of leave to remain visa?

Yes, of course but we are discussing this on Tier 1E forum, no ?

He is extending his Graduate Entrepreneur visa for its second year.

That is what I meant by extension.

I am sorry for the confusion I made.

p.s. According to his criminal lawyer he is very unlikely to get any custodial sentence. So we are dealing with a non-custodial scenario here.