Applying for Settlement Visa with Criminal record

[pixelrage09]

Hi everyone,

First time on the forum here, but have been a longtime lurker. I have recently applied for a settlement visa for my husband in New Delhi, India. He has a criminal record in Canada and was given a non-custodial sentence in October of 2015. Here's where my problem starts:

Our current immigration lawyer is telling me that his chances are slim and states that according to ANNEX D, "A non-custodial sentence or other out of court disposal that is recorded on a person’s criminal record Applications will normally be refused if the conviction occurred in the last 3 years."

But, from my understanding, isn't ANNEX D only applicable to people who are applying for British Citizenship?

The ruling under GGFR (General grounds for refusal) are not very clear either and would really appreciate if someone can explain this further and if "ANNEX D: Good Characted Requirement" applies for settlement applications?

Regards,
Jen

[CR001]

Also depends on what the criminal conviction is.

Was the conviction declared in his spouse visa application?

[pixelrage09]

Also depends on what the criminal conviction is.

Was the conviction declared in his spouse visa application?

The criminal conviction was MISCHIEF (interfering with the lawful enjoyment of property). And he was ordered to pay a fine of $3,500 which he had paid.

EDIT: Yes, the conviction was declared on his application form and we did not hide anything.

[SimonS]

Hi Pixel,

I agree, it's very confusing!

When I read the rules for General Grounds of Refusal "Criminal History" Leave to remain (i.e. Settlement - not ILR)

https://www.gov.uk/government/uploads/s ... -1-v28.pdf

April 2017 version, p37 ECO quick reference guide to refusal crib table - Leave to remain

Non-custodial sentences are only considered in the 24 months prior to application. ECO advice is also "discretionary" as to whether to refuse not "mandatory". The key point is 24 months vs 3 years.

The guidance to ECO specifically refers to Paragraph 322 (1c) of version 5 of the Immigration Rules.

https://www.gov.uk/guidance/immigration ... 9variation

Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom are to be refused

(1) the fact that variation of leave to enter or remain is being sought for a purpose not covered by these Rules.

(1A) where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge), or material facts have not been disclosed, in relation to the application or in order to obtain documents from the Secretary of State or a third party required in support of the application.

(1B) the applicant is, at the date of application, the subject of a deportation order or a decision to make a deportation order;

(1C) where the person is seeking indefinite leave to enter or remain:

(i) they have been convicted of an offence for which they have been sentenced to imprisonment for at least 4 years; or
(ii) they have been convicted of an offence for which they have been sentenced to imprisonment for at least 12 months but less than 4 years, unless a period of 15 years has passed since the end of the sentence; or
(iii) they have been convicted of an offence for which they have been sentenced to imprisonment for less than 12 months, unless a period of 7 years has passed since the end of the sentence; or
(iv) they have, within the 24 months prior to the date on which the application is decided, 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.

Notice "on date where application is decided" I'm not wishing be negative but depending upon when you apply and whether you apply with priority, you might not get a decision until October this year anyway, most especially if you apply September.

I'm not an expert or a lawyer, but where does Annex D come from? I ask because appendix FM Rules for family members, refers only to 322.

[pixelrage09]

Hi SimonS,

Thank you for your reply. I think you may have confused my question. I was asking regarding leave to enter (entry clearance) as spouse of a British Citizen. My husband is applying from India and he's not here in the UK.

Are leave to enter and leave to remain the same thing? Sorry, it's just the immigration rules are mind boggling.

[vinny]

322(1C) doesn't apply because husband is not seeking Indefinite Leave to Enter or Remain.
Annex D doesn't apply because husband is not seeking to naturalise.

However,

Paragraph 320 (18A) and S-EC.2.5.(a) in Appendix FM of the Immigration Rules provides for a discretionary refusal of entry clearance where a person has 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 within the preceding 12 months of submitting their application. Examples of non-custodial sentences may include fines, Cautions, Warnings and Reprimands or suspended sentences. For more information please see the General grounds for refusing guidance page on this website.

Please note that a caution is not a conviction. It is an out of court disposal which is recorded on an individual’s criminal record. Since it is not a conviction the applicant should not be refused under paragraph 320(7A) if they fail to declare it on the application form.

[SimonS]

Hi SimonS,

Thank you for your reply. I think you may have confused my question. I was asking regarding leave to enter (entry clearance) as spouse of a British Citizen. My husband is applying from India and he's not here in the UK.

Are leave to enter and leave to remain the same thing? Sorry, it's just the immigration rules are mind boggling.

No. Leave to enter is treated separately - but also 24 months for information. If I understand correctly after your clarification, you are asking for Spouse Settlement = leave to remain - after entry - but not indefinite leave to remain - 5 years after settlement.

My comments still apply in this case and I would refer them back to your solicitor as I am not a lawyer or expert but I find the question interesting and the rules confusing.

I think Vinny has also provided some very useful information for you......

[SimonS]

Having looked at what Vinny provided I bow down to the greater knowledge of the expert.

https://www.gov.uk/guidance/immigration ... ly-members

Section S-EC: Suitability-entry clearance (Appendix FM)

S-EC.2.5. The exclusion of the applicant from the UK is conducive to the public good because:
(a) 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; or
(b) in the view of the Secretary of State:
(i) the person’s offending has caused serious harm; or
(ii) the person is a persistent offender who shows a particular disregard for the law.

I think at this stage I'd be strongly challenging my solicitor and potentially asking for my money back under threat of report to the Law Society for misrepresentation - Just an idea lol

[pixelrage09]

Thank you Vinny and SimonS!

I knew there was something amiss, but I just decided to trust the solicitor because they're solicitors right?

So, based on the suitability criteria that the conviction happened more than 2 years ago, would it be fair to say that my husband does have a good chance of getting his entry clearance as a Spouse of a British citizen?

Thank you once again for all the help!

[vinny]

He should be okay. He should also declare it.