Refusal under Paragraph 320(7A) - Following up with JR

[brentallan]

Hi

I applied for a general visit visa, and was refused under paragraph 320(7A). The details of the refusal are below :



The details of the decision made by Entry Clearance Officer xxx are as follows:
In your Visa application form in answer to Question 75, “Do you have any criminal convictions in any country?” you have answered “No.”
I am satisfied that this statement is false because our records, confirmed by fingerprint match, show that you received a police caution for possession of a Class B controlled drug on 10/03/12
The detail of this criminal conviction is contained within a Document Verification Report which is held on file
Under Paragraph 320(7A) of the Immigration Rules a person must automatically be refused entry clearance if false representations or documents are used (whether or not material to the application and whether or not to the applicant’s knowledge), or material facts are not disclosed in relation to the application. A false representation for these purposes is a lie, or a false statement in a visa application, made either orally or in writing.
I am satisfied, to a higher balance of probabilities that false representations were made in your visa application. I therefore refuse your application.
You should note that because this application for entry clearance has been refused under Paragraph 320(7A) of the Immigration Rules, any future applications may also be refused under Paragraph 320(7B) of the Immigration Rules (Subject to the requirements set out in Paragraph 320 (7c)).




What is the general consensus on a police caution not being a criminal conviction, and therefore it not being necessary to declare it as one?

On the UK Border Agency Guidance Notes, RFL10, it says the following:

“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.” [RFL10.3].

I used these guidance notes when filling out my application form. The category of visa that I applied for does not have right of appeal. I have consulted with a lawyer, and have drafter up a "Proposed Claim For Judicial Review"/PAP which will hopefully be sent off in the next day or so.
I was wondering if perhaps I could get some feedback RE: The reasons for the refusal/The information provided in RFL10.3 that indicate that it was not necessary for me to declare my police caution. It is on the grounds of the information provided in RFL10.3 that I intent to base the claim for Judicial Review.

[Amber]

Prior to December 2012 a police caution would not arguably have been a material fact/declarable offence as is immediately spent. However, the 1974 Act is no longer relevant.

[brentallan]

...

[Amber]

See below.

[ban.s]

320 (7A) 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.

[brentallan]

There is only a discretionary refusal of entry clearance where a non-custodial or other out of court disposal is recorded in the preceding 12 months - not 24 months.

A non-custodial sentence - Paragraph 320 (18A) and S-EC2.5(a) Appendix FM provides for a discretionary refusal of entry clearance where has been convicted 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.

I therefore would not have been refused if I had declared it, as it was over 12 months ago. I feel that the UKBA need to take responsibility for the information they provide in their guidance notes, if it is this information which is made available to applicants when applying for entry clearance. I do not see how it is deception, whether knowingly or unknowingly, if an answer to a question in my application form is informed through the UKBA guidance notes. The official information provided to me RFL10 indicated that it was not necessary to declare it - surely evidence enough?

[Amber]

You can still be refused even if 12 months has lapsed. The suitability requirements could also be used to state you are unsuitable for entry.

[Obie]

The refusal is clearly wrong. A caution is not a conviction or a non-custodial sentence. Therefore a refusal to disclose a caution is clearly wrong.

[brentallan]

Thank you Obie. I couldn't get my head around how the guidance clearly states that it need not be declared, nor should I be refused under paragraph 370(a) - and am sure that that in itself is evidence enough to dispute the refusal.

My lawyer has sent the Proposed Claim for Judicial Review to them today - will update as to the progress of it.

[Obie]

It is noteworthy, that a guidance is not law.

However in the circumstance of your case, a Judicial Review seems appropriate, given the potential future consequences, if you let this refusal stand.

They could, if the wished, have refuse you, if based on the caution, the Secretary of State deem your exclusion as conductive to the public good.

That's very different from saying you used deception.

[Amber]

I agree the refusal wording is poor, the fact that the decision maker expected you to tick yes. However, the police caution was a material fact that should have been declared and failing to declare it could amount to deception.

[Obie]

I am having difficulty appreciating what you are saying. Which section require him to set out a material fact that he failed to disclose.

If you are asked if you have any conviction, and you say yes, when you clearly don't, then that is a wrong statement. Because you do not have a conviction. The fact is, there are no convictions.

You can't say you have something, when you clearly don't.

If they wanted conviction to be listed, they should have clearly said so.

I disagree, that this is a material fact, that could affect an application.

There are no provisions for refusing entry clearance if someone has a caution.

If the person had a non-custodial conviction, then , yes there is a probationary period, before those people can apply.

[Amber]

There are provisions, of which I'm sure you're aware, to refuse due to non-custodial sentences, of which includes includes out of court disposals, of which a police caution is one such disposal.

However, after reading the entry guidance it clearly states that entry clearance should not be refused for deception where the applicant fails to disclose the caution. So therefore, the decision to refuse on deception was perhaps wrong but it is only guidance and they may longer be following that guide, nonetheless, refusal could still have been given for suitability.

[Obie]

I have already accepted, that it is open to the Secretary to issue an exclusion, if she believes the presence of the OP in the UK in light of his caution is conducive to the public good. This will be very rear, but it is a discretionary power open to her.
However, there are no provisions to refuse someone leave or ECO on grounds on grounds of a caution.

I am not sure if the country the OP comes from, consider a caution as conviction, and whether the caution is from his country of origin or whiles he was in the UK.

In any case, the refusal, seem to me, to be based on his stating no for a criminal conviction, when in the view of the ECO he should have stated yes.
This is clearly wrong.

If it was the view of the ECO, that he should have wrote about his caution seperately, and hence he is refusing on that basis, i would have been compelled to understand.
Although i will doubt, if failure to do so, when it is not explicitly stated on an application will amount to a justification for refusal on grounds of 320(7A). Seems very harsh and unlawful to me.

With a good lawyer, I'm confident this will not stand judicial scrutiny.

By an conservative reading 320(18A) does not apply to this case.

[brentallan]

I am South African, but the caution was issued in the United Kingdom. It is not considered a conviction there, and neither is it in my home country.

Thanks for your discussion on the topic, it is much appreciated.

[Obie]

Having said so, it will help if you make a SAR request for the police record, and see exactly whats written there. But in any event it does not seem to me that you accepted any offense, and got a police non-custodial sentence.

A caution is not a sentence.

However, if for argument sake you lose out on 320(18A), you certainly cannot loose on 320(7A).

[Amber]

In order to get a police caution in England, you must accept the offence, a police caution is an admittance of committing the offence hence why it is classed as an out of court disposal and there are provisions to refuse an immigration application for those who do have a police caution (out of court disposal) within the last 12 months for entry, 24 months for ILR or 3 years for citizenship.

A police caution can be given for serious criminal activity, (although usually low level) generally, where the offender has no previous criminal history.

You shouldn't accept cautions lightly as the repercussion can be severe.

The ethos around immigration and nationality applications is openness and honesty, hiding a criminal past is not a way of securing a positive application.

[Obie]

Suffice to say, i don't agree with the above assessment in its entirety.

It does not have a basis in Criminal law, immigration law, or the rehabilitation of ex offenders act 1974.

A caution could mean lots of thing. It could be a warning to the alleged offender, it could mean that due to lack of sufficient evidence, police does not intend to prosecute. Or it is not in the public interest to prosecute.

It does not necessarily imply that one owned up to any offense.

It any event, it is not a conviction.

What ever view, that one can hold about foreign national who commits a particular offense, the fact remains, that an ECO is required to follow the law to the letter and to the spirit.

In my view, they seem to have miserably failed in both, such that they have left themselves and British Taxpayers liable to a credible challenge, which could result in financial consequences.

[Amber]

A simple police caution (as opposed to conditional caution) is a formal warning (caution) given to adult offender who have admitted their guilt. The Criminal Justice Act 2003 created two forms of caution the conditional caution having conditions attached, the simple caution having no conditions.

Now although a simple police caution is not a conviction it will form part of a person’s criminal record, as such can be used in court if they are prosecuted and will be displayed to certain potential employers (unless filtered). A simple police caution will be displayed on a standard and enhanced DBS (previously CRB) certificate for a 6 year period.

Although you mentioned the Rehabilitation of Offenders Act 1974, unfortunately, that is no longer applicable to immigration and nationality applications. The 1974 allowed simple cautions to become spent immediately after they were given and thus previous applicants benefited from a simple caution being spent and not of consequence for immigration and nationality. However, the legal Aid, Sentencing and Punishment of Offenders Act 2012 means there is no rehabilitation for certain immigration or nationality purposes (s 140). Indeed, now a simple police caution will be a bar for ILR for a 24 month period and 3 years for citizenship and a discretionary refusal can be given for 12 months in respect to entry applications.

Since 2008 the Home Office has made it clear that police cautions must only be given where the offender admits to a crime, where the evidence would be enough to prosecute the offender and most importantly that the offender understands the consequences of the caution and gives informed consent and signs the declaration stating they understand what is involved. If this is not followed, then one would could potentially have the caution quashed as happened recently in R (on the Application of Stratton) v Chief Constable of Thames Valley Police [2013].

Regarding the public interest, the public interest does not automatically require a prosecution. Indeed, paragraph 9 of the DPP guide (5th ed) advises that there are times when a simple caution is the appropriate disposal, hence why they are given to about 30,000 in the Met area each year. Indeed, the Code for Crown Prosecutors (section 7) considers a caution to be used when there is clear evidence of criminal guilt, the offender admits to the offence and that the crime is usually low level (summary or triable either way) and they have no previous criminal history. Though, this is not always the case.

In the light of this, I think that a police caution, as it forms part of a person’s criminal record and is entrenched within the criminal justice system and now immigration and nationality should be declared more so in the ‘spirit’ of honesty and transparency. Whether failure to do so amounts to deception is open to interpretation, nationality and immigration applications should perhaps ask – have you ever been arrested? As that would encompass most, if not all criminality. Further details could then be given. The ECO was arguably wrong to base his/her decision on deception and not ticking the conviction box, especially as it is contrary to the refusal guidance (although we do not know what other guidance the ECO may be privy to). However, it would be likely that if someone failed to mention a relevant caution for a nationality application they would face a similar 10 year ban for deception for not declaring it. Should this be changed? The questions on the applications should be. Whether a refusal should still be given for having a simple police caution is debatable and likely to be more significant in the future, perhaps as a way for the government to reduce immigration or control prosecution statistics/court costs.

[Obie]

I find your post most educative and informative. I could envisage several contrary argument, but i think it will not be appropriate for this thread.

As a moderator, i have a duty to ensure we don't drift out of topic. It appears we are.

Perhaps we can take this issue further on another day, in a more appropriate topic.

Suffice to say, the new LAPSO came into effect in April of this year, and the caution this OP received predates that legislation.

The one and only issue on this thread, is whether or not the OP was required to declare a conviction, he has not got, on a Visa application form.

I am pleased that we have all agreed, in different ways, that he wasn't.

On that basis, the ECO was wrong to refuse under 320(7A).

Your views are appropriately robust, and one which a policy maker may be best advised to take on board, but on this particular instance, i don't think it offers much assistance in dealing with this individual's question.

[brentallan]

Thank you for your discussion.

I received a response to the Proposed Claim for Judicial Review today, only one day after submitting it. The response is as follows:

"Dear x

Further to your correspondence regarding Refusal of Entry Clearance xxx, I have reviewed the application submitted by xxx, as well as the decision.

I note the attached extracts from Entry Clearance Guidance and I accept that Paragraph 320 Refusal should not have been applied to this application for Mr xxx's failure to admit to his previous police caution.

I am satisfied that this decision should be overturned and entry clearance issued.

Please arrange for Mr. xxx's passport to be submitted to this office in order to effect the issue.

Regards

xxx ECO"

I hope that this can prevent any confusion for others in making applications for Entry Clearance and whether or not to declare a police caution. But, otherwise, fantastic news for me!

[Choc-Ice]

Thank you for your discussion.

I received a response to the Proposed Claim for Judicial Review today, only one day after submitting it. The response is as follows:

"Dear x

Further to your correspondence regarding Refusal of Entry Clearance xxx, I have reviewed the application submitted by xxx, as well as the decision.

I note the attached extracts from Entry Clearance Guidance and I accept that Paragraph 320 Refusal should not have been applied to this application for Mr xxx's failure to admit to his previous police caution.

I am satisfied that this decision should be overturned and entry clearance issued.

Please arrange for Mr. xxx's passport to be submitted to this office in order to effect the issue.

Regards

xxx ECO"

I hope that this can prevent any confusion for others in making applications for Entry Clearance and whether or not to declare a police caution. But, otherwise, fantastic news for me!

Fantastic news! Good job brentallan!

[Obie]

Wonderful news. I knew the decision could not stand, in the circumstances.

Best of luck for the future.