Letter from Criminal court

[friend12345]

Hi Guys!!!

I need some help on the following situation:

A friend of mine received a letter from Criminal court for taking U turn where it wasn't allowed while driving a taxi, he is due to apply for ILR in Feb 2014 under 10 years category, is this going to effect his application?

Any comments appreciated.

[Amber]

Hi Guys!!!

I need some help on the following situation:

A friend of mine received a letter from Criminal court for taking U turn where it wasn't allowed while driving a taxi, he is due to apply for ILR in Feb 2014 under 10 years category, is this going to effect his application?

Any comments appreciated.

You mean he was issued a FPN? If so, it will not be classed as a non-custodial conviction.

[friend12345]

Hi Guys!!!

I need some help on the following situation:

A friend of mine received a letter from Criminal court for taking U turn where it wasn't allowed while driving a taxi, he is due to apply for ILR in Feb 2014 under 10 years category, is this going to effect his application?

Any comments appreciated.

You mean he was issued a FPN? If so, it will not be classed as a non-custodial conviction.

No, he hasn't got the decision yet, all he got just now is a letter from criminal court, if he plea guilty by post and accept court fine and penalty points, will this effect his application in future as it is dealt by criminal court?

Thanks

[Amber]

Hi Guys!!!

I need some help on the following situation:

A friend of mine received a letter from Criminal court for taking U turn where it wasn't allowed while driving a taxi, he is due to apply for ILR in Feb 2014 under 10 years category, is this going to effect his application?

Any comments appreciated.

You mean he was issued a FPN? If so, it will not be classed as a non-custodial conviction.

No, he hasn't got the decision yet, all he got just now is a letter from criminal court, if he plea guilty by post and accept court fine and penalty points, will this effect his application in future as it is dealt by criminal court?

Thanks

The issue will be whether any non-custodial sentence is recorded on his criminal record for the purpose of part 9 - general grounds for refusal.

[Ayyubi72]

Your friend has been issued summons to appear in court.

He must fill up the forms sent by the court and return them before the date mentioned in the summons.

He can either plead guilty or not guilty. Whether he pleads guilty or not guilty, he will have the option to appear in the court in person alone, or send a solicitor or attend with a solicitor.

If he wants he can plead guilty or not guilty by writing to the court, or ask a solicitor to write to the court and not appear in person. Pleading by post is as same as appearing in person for all practical purposes.

If he pleads guilty that means he is admitting to the court that he has committed the offence. On the hearing date, magistrate/judge will formally pronounce him guilty. No doubt he will be given a fine with the guilty verdict.

As per Part 9 322 (1C) (iv), your friend will have to wait for 24 months before his ILR application will be successful.


If your friend decides to plead NOT GUILTY, then a new trial date will be sent by court. On this date, your friend will have to convince the court that he is NOT GUILTY of the offence. He can convince the court by appearing in person alone, or by going with a solicitor, or just by writing to the court.

After hearing the allegations and the the arguments against the allegations, court will either pronounce a GUILTY or NOT GUILTY verdict. If court pronounces a NOT GUILTY verdict then your friend can walk off, and just forget about the matter as if nothing ever happened. Needless to say this will have no effect on his ILR application.

If the court pronounces the GUILTY verdict then for sure he will be sentenced. Keep in mind, sentence does not necessarily mean prison. A fine is a sentence too. It is a non-custodial sentence, but still a sentence.
In this scenario, As per Part 9 322 (1C) (iv), your friend will have to wait for 24 months before his ILR application will be successful.

Hope I have covered everything.

[londener]

Ayyubi72,

Very good clarification with the logics.
Can I here ask you for your support that an arrest for an investigation has declared for No Further Action ( NFA ) as per PNC report can effect the ILR application ?
Cheers

[Ayyubi72]

I did not clarify anything with logic, I clarified based on the the actual criminal justice law and actual court procedures. This is how it is done in real life. I just didn't copy and paste some theoretical knowledge.

Anyways, that NFA thing is not a clear cut matter.

The rules say that leave could be refused because of

5) the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within paragraph 322(1C), character or associations
or the fact that he represents a threat to national security;

In practical terms, if this arrest was a one off, then no problem. But can't say for sure until the whole story from A to Z is known.

[Amber]

If the op wishes to dispute the alleged offence he should contact a solicitor who has experience in this matter.

[Amber]

Your friend has been issued summons to appear in court.

He must fill up the forms sent by the court and return them before the date mentioned in the summons.

He can either plead guilty or not guilty. Whether he pleads guilty or not guilty, he will have the option to appear in the court in person alone, or send a solicitor or attend with a solicitor.

If he wants he can plead guilty or not guilty by writing to the court, or ask a solicitor to write to the court and not appear in person. Pleading by post is as same as appearing in person for all practical purposes.

If he pleads guilty that means he is admitting to the court that he has committed the offence. On the hearing date, magistrate/judge will formally pronounce him guilty. No doubt he will be given a fine with the guilty verdict.

As per Part 9 322 (1C) (iv), your friend will have to wait for 24 months before his ILR application will be successful.


If your friend decides to plead NOT GUILTY, then a new trial date will be sent by court. On this date, your friend will have to convince the court that he is NOT GUILTY of the offence. He can convince the court by appearing in person alone, or by going with a solicitor, or just by writing to the court.

After hearing the allegations and the the arguments against the allegations, court will either pronounce a GUILTY or NOT GUILTY verdict. If court pronounces a NOT GUILTY verdict then your friend can walk off, and just forget about the matter as if nothing ever happened. Needless to say this will have no effect on his ILR application.

If the court pronounces the GUILTY verdict then for sure he will be sentenced. Keep in mind, sentence does not necessarily mean prison. A fine is a sentence too. It is a non-custodial sentence, but still a sentence.
In this scenario, As per Part 9 322 (1C) (iv), your friend will have to wait for 24 months before his ILR application will be successful.

Hope I have covered everything.

This is not the important factor as I said previously what matters is if the non-custodial conviction is recorded on the ops criminal record and for traffic offences they often do not. As a result the applicant would not be refused under part 9 - 322(1C)(iv).

[JohnM]

Absolutely correct. It depends on the criminal record.

Most probably, wrong U turn won't affect. However, it depends what the accusation is, etc. For example, if it was U turn and drink driving was involved then it may get on criminal record.

I would suggest to hire good traffic solicitor. He may me accused of something serious when in fact it was very minor offence or not offence at all. If he just pleads guilty by post then he would be guilty of whatever he is accused of. Accusation is usually much more serious than the offence itself.

If he pleads not guilty it does not mean there will be necessary long court proceedings. 90% of the cases are solved when there is some sort of bargain achieved between the accused and the court. When you friend agrees to plead guilty but to lesser or much lesser charge. But for this you usually need good traffic solicitor.

If it happened not too far from Glasgow, I recommend Graham Walker road traffic solicitor (google him). I don't know if he works nationwide but maybe he can recommend someone who will. Also, bear in mind that good traffic solicitors will charge quite a lot, but if there is no full court proceeding involved their fee may be reduced, however, you must be prepared to pay full price because you never know 100% if it would be full court proceedings or not.

If full court is involved it may take quite long time... May even take a year.

It all really depends on accusation and individual choice. If your friend risks disqualification and wants to work as taxi driver, then it is better to fight it hire good traffic solicitor. If the accusation is light then he may plead guilty and it won't affect anything. Google for list of recordable convictions. With regards to driving it is usually something that involves alcohol, drugs and fatalities which gets to criminal record. But sometimes it may be something less. I would recommend to contact road traffic solicitor and probably immigration solicitor too. It is not cheap but better do it this way to be on the safe side. I am not advertising solicitors here, this is my sincere opinion on this matter. In road traffic law accusation may be so much worse than actual offense and you have many instruments to fight with it but only solicitors can use them most effectively, especially good ones. Look carefully for the best road traffic solicitors, it would be worth it at the end. Don't go for average/cheaper, not worth it.

[Ayyubi72]

Your friend has been issued summons to appear in court.

He must fill up the forms sent by the court and return them before the date mentioned in the summons.

He can either plead guilty or not guilty. Whether he pleads guilty or not guilty, he will have the option to appear in the court in person alone, or send a solicitor or attend with a solicitor.

If he wants he can plead guilty or not guilty by writing to the court, or ask a solicitor to write to the court and not appear in person. Pleading by post is as same as appearing in person for all practical purposes.

If he pleads guilty that means he is admitting to the court that he has committed the offence. On the hearing date, magistrate/judge will formally pronounce him guilty. No doubt he will be given a fine with the guilty verdict.

As per Part 9 322 (1C) (iv), your friend will have to wait for 24 months before his ILR application will be successful.


If your friend decides to plead NOT GUILTY, then a new trial date will be sent by court. On this date, your friend will have to convince the court that he is NOT GUILTY of the offence. He can convince the court by appearing in person alone, or by going with a solicitor, or just by writing to the court.

After hearing the allegations and the the arguments against the allegations, court will either pronounce a GUILTY or NOT GUILTY verdict. If court pronounces a NOT GUILTY verdict then your friend can walk off, and just forget about the matter as if nothing ever happened. Needless to say this will have no effect on his ILR application.

If the court pronounces the GUILTY verdict then for sure he will be sentenced. Keep in mind, sentence does not necessarily mean prison. A fine is a sentence too. It is a non-custodial sentence, but still a sentence.
In this scenario, As per Part 9 322 (1C) (iv), your friend will have to wait for 24 months before his ILR application will be successful.

Hope I have covered everything.

This is not the important factor as I said previously what matters is if the non-custodial conviction is recorded on the ops criminal record and for traffic offences they often do not. As a result the applicant would no
t be refused under part 9 - 322(1C)(iv).

Amber, with due respect may I say you have no clue what you are talking about. A conviction is a conviction. I have explained at length before that traffic convictions are recorded by DVLA.

All convictions are criminal convictions. There is nothing known as "civil conviction" or "non-criminal conviction". The word "conviction" can and is only used for criminal proceedings, no matter how trivial the matter is.

When its a court order about a civil matter, its called a "Judgement" or an "order". Like "county court judgement", or "anti social behaviour order" or a "restraining order" or "council tax liability order" etc etc.

[Amber]

Your friend has been issued summons to appear in court.

He must fill up the forms sent by the court and return them before the date mentioned in the summons.

He can either plead guilty or not guilty. Whether he pleads guilty or not guilty, he will have the option to appear in the court in person alone, or send a solicitor or attend with a solicitor.

If he wants he can plead guilty or not guilty by writing to the court, or ask a solicitor to write to the court and not appear in person. Pleading by post is as same as appearing in person for all practical purposes.

If he pleads guilty that means he is admitting to the court that he has committed the offence. On the hearing date, magistrate/judge will formally pronounce him guilty. No doubt he will be given a fine with the guilty verdict.

As per Part 9 322 (1C) (iv), your friend will have to wait for 24 months before his ILR application will be successful.


If your friend decides to plead NOT GUILTY, then a new trial date will be sent by court. On this date, your friend will have to convince the court that he is NOT GUILTY of the offence. He can convince the court by appearing in person alone, or by going with a solicitor, or just by writing to the court.

After hearing the allegations and the the arguments against the allegations, court will either pronounce a GUILTY or NOT GUILTY verdict. If court pronounces a NOT GUILTY verdict then your friend can walk off, and just forget about the matter as if nothing ever happened. Needless to say this will have no effect on his ILR application.

If the court pronounces the GUILTY verdict then for sure he will be sentenced. Keep in mind, sentence does not necessarily mean prison. A fine is a sentence too. It is a non-custodial sentence, but still a sentence.
In this scenario, As per Part 9 322 (1C) (iv), your friend will have to wait for 24 months before his ILR application will be successful.

Hope I have covered everything.

This is not the important factor as I said previously what matters is if the non-custodial conviction is recorded on the ops criminal record and for traffic offences they often do not. As a result the applicant would no
t be refused under part 9 - 322(1C)(iv).

Amber, with due respect may I say you have no clue what you are talking about. A conviction is a conviction. I have explained at length before that traffic convictions are recorded by DVLA.

All convictions are criminal convictions. There is nothing known as "civil conviction" or "non-criminal conviction". The word "conviction" can and is only used for criminal proceedings, no matter how trivial the matter is.

When its a court order about a civil matter, its called a "Judgement" or an "order". Like "county court judgement", or "anti social behaviour order" or a "restraining order" or "council tax liability order" etc etc.

I'm not sure what that jibberish was all about, however, if you take some time and read other users who have been successful for their ilr applications you will see that when non-custodial convictions are not recorded they appear to have been successful. I said non-custodial not non-criminal the word custodial relates to 'custody' - imprisonment.

[Ayyubi72]

errrm, Its not jibberish, if you do not have the knowledge about a subject, that does not make that subject jibberish somehow. It is the actual law. How many actual criminal or civil proceedings have you attended?

Yes, some people's experiences are there that their applications have been successful. But read others experiences, when exactly in the same circumstances their applications have been refused. I will post the links to their actual posts when I get time to fish them out.

Not even all caseworkers have the full knowledge about every field of law. I have told the position according to the word of law. Still some people will sail through because caseworkers don't look deep into every application or do not understand. Some won't.

[Amber]

errrm, Its not jibberish, if you do not have the knowledge about a subject, that does not make that subject jibberish somehow. It is the actual law. How many actual criminal or civil proceedings have you attended?

Yes, some people's experiences are there that their applications have been successful. But read others experiences, when exactly in the same circumstances their applications have been refused. I will post the links to their actual posts when I get time to fish them out.

Not even all caseworkers have the full knowledge about every field of law. I have told the position according to the word of law. Still some people will sail through because caseworkers don't look deep into every application or do not understand. Some won't.

I think you'll find some will succeed because the non-custodial conviction is not recorded on their criminal record, thus not a mandatory refusal.

I suspect that the 'criminal record' reates primarily to recordable offences as such must be recorded on the pnc rather than looking at the DVLA database. In our common law system, interpretation of any legislation is extremely important, you are neglecting the fact that the non-custodial conviction needs to be recorded on the applicant's criminal record not just the mere fact he has a non-custodial conviction.

[Ayyubi72]

I do not "suspect" anything in this matter, I know and understand the matter in depth and in full.

I have already said, that some will sail through, but some won't.

You know too well, that in a non-custodial sentence will be disregarded for nationality matters only after 3 years, and for ILR it will be disregarded only after 2 years, and these are not my words, these are immigration rules, to which I have pointed out, and you yourselves have pointed out.

Now can you tell me which non-custodial sentences are recorded on the PNC?

Does UKBA say that non-custodial sentences that are recorded on PNC will result in refusal?

Does UKBA say anywhere that non-custodial sentences that are not recorded on PNC will result in a successful application?

Do the rules and guidance mention anywhere about the difference between sentences that are recorded or not recorded?

Do you know that even the non recordable sentences can actually be recorded? Do you know how and why that happens?

Do you know that someone's details can be recorded on PNC even if they have never been taken to court let alone found guilty of any offence?

Anyways, I am not expecting a reply or debate with you. I have said what I had to say. Whatever has to happen to someone will happen, including immigration applicants.

[Amber]

I do not "suspect" anything in this matter, I know and understand the matter in depth and in full.

I have already said, that some will sail through, but some won't.

You know too well, that in a non-custodial sentence will be disregarded for nationality matters only after 3 years, and for ILR it will be disregarded only after 2 years, and these are not my words, these are immigration rules, to which I have pointed out, and you yourselves have pointed out.

Now can you tell me which non-custodial sentences are recorded on the PNC?

Does UKBA say that non-custodial sentences that are recorded on PNC will result in refusal?

Does UKBA say anywhere that non-custodial sentences that are not recorded on PNC will result in a successful application?

Do the rules and guidance mention anywhere about the difference between sentences that are recorded or not recorded?

Do you know that even the non recordable sentences can actually be recorded? Do you know how and why that happens?

Do you know that someone's details can be recorded on PNC even if they have never been taken to court let alone found guilty of any offence?

Anyways, I am not expecting a reply or debate with you. I have said what I had to say. Whatever has to happen to someone will happen, including immigration applicants.

Nationality is nothing to do with ILR so best to keep them separate.

Not Part 9 of the immigration rules states at 322:

(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 preceding the date of the application, 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.

I have made bold the important information that you seem to be neglecting. A non-custodial sentence (hence why I keep using the words) that is recorded on a person's criminal record will be a bar for 24 months. For custodial sentences it does not matter whether or not the conviction is recorded. A criminal record check for the UKBA is done after Biometrics - the biometric data is ran against the PNC looking for a match. Yes they may use other databases but for the purpose of a criminal record the PNC is key.

For a list of recordable offences automatically held on the PNC see the ACPO guidance for nominal records held on the PNC. But note, in response to Chief Constable of Humberside Police v The Information Commissioner [2009] EWCA Civ 1079 no records are stepped down any more. However, the most recent case of R. (T and others) v Chief Constable of Greater Manchester Police and others [2013] EWCA Civ 25 may cast doubt on this and lead to a change in the law. Though the Government is waiting to see if they will be granted leave to appeal to the Supreme Court.

The retention and use of police data is the topic for my LL.M. Thesis.

[Ayyubi72]

If you are doing LLM then I suggest you smarten up. I won't name the two universities, but two years ago I took a survey of final year LLB sudents. I asked two questions.

I asked, What is the difference between England, Britain and United Kingdom. Out of 100 students, only two answered correctly. Both the people who answered correctly were from Northern Ireland.

I asked, if someone commits a crime, who charges that person in court? Only 12 students answered correctly.

So there you go, UK unis printing and distributing degrees.

Your problem is, because you are arguing, or you have pre decided the possible outcome of debate, you are just using your tunnel vision to read what you are reading.

(iv) they have, within the 24 months preceding the date of the application, 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.

the highlighted words are just talking about the out-of-court-disposals only. its not talking about non-custodial sentences.

Non, you are doing LLm, so I will let you do some work. Go on, you can shed some light on what out-of-court-disposal is.

Plus you have contradicted yourselves totally by copying this sub para. Now I won't yet tell you how you have contradicted yourselves. Lets see the depth of your knowledge.

[Amber]

If you are doing LLM then I suggest you smarten up. I won't name the two universities, but two years ago I took a survey of final year LLB sudents. I asked two questions.

I asked, What is the difference between England, Britain and United Kingdom. Out of 100 students, only two answered correctly. Both the people who answered correctly were from Northern Ireland.

I asked, if someone commits a crime, who charges that person in court? Only 12 students answered correctly.

So there you go, UK unis printing and distributing degrees.

Your problem is, because you are arguing, or you have pre decided the possible outcome of debate, you are just using your tunnel vision to read what you are reading.

(iv) they have, within the 24 months preceding the date of the application, 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.

the highlighted words are just talking about the out-of-court-disposals only. its not talking about non-custodial sentences.

Non, you are doing LLm, so I will let you do some work. Go on, you can shed some light on what out-of-court-disposal is.

Plus you have contradicted yourselves totally by copying this sub para. Now I won't yet tell you how you have contradicted yourselves. Lets see the depth of your knowledge.

I'm afraid you fail to understand that the interpretation of the paragraph is not clear cut. You can read (iv) as the non-custodial sentence must be recorded on the 'criminal record' and based on other people's experiences that would appear to be how the ukba caseworkers are viewing it too. Now unless you have evidence to the contrary I would think before you type.

And why on earth would you be surveying ll.b. students? And a crime doesn't get charged at court, that happens before, the alleged crime gets 'prosecuted at court'. So I don't think you're fit to be questioning law students.

[UKBA HUNTER]

The both posters feel like graduated from Tier 4 B rated law college who just distracting everyone including silent readers (me).
But still Ayubi theory/logics feels more accurate.

[Ayyubi72]

I think at least partially you got my point, but I promise I will explain why the way I read is correct.

And yes, you got me on my terminology, hands up. Yes, prosecuted in court. But on the other hand, you are only "charged" because you are being prosecuted. Before charging, its an "allegation".

You are "charged" because you will be prosecuted, not in near future, but tomorrow. Because police want to prosecute you, they have to charge you.
There can be no prosecution if you are not charged. And, its not a charge if you don't get prosecuted. Charge and prosecution go hand in hand. One cannot simply happen without the other.

[Amber]

The both posters feel like graduated from Tier 4 B rated law college who just distracting everyone including silent readers (me).
But still Ayubi theory/logics feels more accurate.

You're not doing a good job at being silent

And it's not what feels accurate what counts, it's evidence based on people's experiences what matters when looking at interpretations of rules.

[paba89]

Guys chill. This forum is for helping others not to argue with each other. If you want to argue just for the sake of argue go to some other forum. I hope no more comments on each other comments.

Relax....

[Ayyubi72]

The both posters feel like graduated from Tier 4 B rated law college who just distracting everyone including silent readers (me).
But still Ayubi theory/logics feels more accurate.

You're not doing a good job at being silent

And it's not what feels accurate what counts, it's evidence based on people's experiences what matters when looking at interpretations of rules.

Nope, people's experiences do not matter when interpreting rules. It happens on a regular basis in past that UKBA or other government bodies take wrong decisions. Sometimes these wrong decisions are beneficial to applicants and sometimes they are not. But these wrong decisions, which become people's experiences do not become valid interpretations. In past, many a times UKBA issued ILE to people when all they were supposed to do is issue 2 years spouse visa. This happened in hundreds of cases. That does not mean that somehow the rules were "interpreted" and a precedent set because of experience of these people (applicants).

And it follows, that if someone's application was refused wrongly, then it did not mean that that wrong interpretation and bad experience of people somehow became the correct interpretation of rules.

And talking about UKBA, its not that only visas were issued incorrectly, it even happened in nationality cases.

Caseworkers are only humans, they will make good legally sound decisions and sometimes bad and illegal decision.

That is why there is judicial process. Needless to say, this is not only in immigration cases but in every sphere of governance and life.

[Amber]

Guys chill. This forum is for helping others not to argue with each other. If you want to argue just for the sake of argue go to some other forum. I hope no more comments on each other comments.

Relax....

Although we are not arguing, we just have differing opinions, we are not getting anywhere. As the stakes are high, I'll send a request to the HO to ask how one should interpret (iv).

[UKBA HUNTER]

I'll send a request to the HO to ask how one should interpret (iv).

Did you manage to get it interpreted and got reply so far.