ILR with caution for possession of Class A drugs

[samalmoore]

Hello,

I am on an ancestral visa and approaching the end of my visa. I was looking very forward to applying for ILR but I have a police caution issued in July 2012 and from my understanding, that will now mean a mandatory refusal of my application. I have called the Croyden Centre help number and they have told me that it will be fine as long as I declare it but when I questioned them further, they said that they hadn't been informed of any rule changes and couldn't give me any more information. Neither could they direct me towards anyone who would be able to give me more information.

I have searched and searched and have found some posts from people who have received ILR with a caution less than two years old which has given me some hope but I am considering just applying to extend my visa and apply for ILR later. Does anyone know of any success stories (particularly relating to Class A drugs), or am I being silly and should I just apply for an extension to my visa?

Many Thanks for any advice/opinions offered!

[Amber]

A simple police caution should be a refusal for 24 months after it was issued. You should extend your stay until it has lapsed. Do you have the name of the person at Croyden who gave you that advice?

[samalmoore]

A simple police caution should be a refusal for 24 months after it was issued. You should extend your stay until it has lapsed. Do you have the name of the person at Croyden who gave you that advice?

Hi, thanks for your reply. I called twice today (because I wasn't sure of the information I was given). The first time I spoke with a gentleman named Francois, and the second with a lady named Nancy. They both told me the same thing!

Do you know people there?

[Amber]

Get the full names if you can as they are giving out bad advice, the rules changed in December 2012!

[samalmoore]

[quote="D4109125"]Get the full names if you can as they are giving out bad advice.[/quote

Should I report them?

[Amber]

There is something untoward if they are unaware of the rules, they should not be advising you over the phone anyway.

[samalmoore]

There is something untoward if they are unaware of the rules, they should not be advising you over the phone anyway.

Well, this gave me hope, combined with some reports from forums such as this where people have been successful, that perhaps there is a certain element of discretion involved.

Do you or have you ever worked for the home office?

[Amber]

No I do not, however, I have been corresponding with a senior nationality and settlement caseworker in the criminality team. Where a police caution is recorded is on the applicant's criminal record, it should be a general grounds for refusal for 24 months. You should see, page 5 and 6 of the general grounds for refusal (click). It is not discretionary, it is a must.

[samalmoore]

No I do not, however, I have been corresponding with a senior nationality and settlement caseworker in the criminality team. Where a police caution is recorded is on the applicant's criminal record, it should be a general grounds for refusal for 24 months. You should see, page 5 and 6 of the general grounds for refusal (click). It is not discretionary, it is a must.

Okay, thanks for your help. I guess I will just need to extend my visa and apply after another year.

[Amber]

I mean you could take a risk and hope either Francis or Nancy are caseworkers and decide your case or that some other caseworkers just ignores the general grounds for refusal. If not you'll face rejection.

[Amber]

Refusal of leave to remain, variation of leave to enter or remain or curtailment of leave
322. In addition to the grounds for refusal of extension of stay set out in Parts 2-8 of these Rules, the following provisions apply in relation to the refusal of an application for leave to remain, variation of leave to enter or remain or, where appropriate, the curtailment of leave:

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 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.

[samalmoore]

Refusal of leave to remain, variation of leave to enter or remain or curtailment of leave
322. In addition to the grounds for refusal of extension of stay set out in Parts 2-8 of these Rules, the following provisions apply in relation to the refusal of an application for leave to remain, variation of leave to enter or remain or, where appropriate, the curtailment of leave:

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 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.

Does that mean that I cannot apply to extend my visa either? :0

[Amber]

322(1C) relates to ILR applications though, if you are unsuitable (non conducive, adverse character, conduct or associations) you could still be refused.

[samalmoore]

322(1C) relates to ILR applications though, if you are unsuitable (non conducive, adverse character, conduct or associations) you could still be refused.

Okay, do you think one caution would cause a refusal for extension of my visa? My only other option is to leave the country, wait for one year, and then reapply on a spousal visa. I just don't want to ruin my chances - further than I have already and I believe a refusal for any reason makes it much harder to get any kind of visa in the future.

[Amber]

It's discretionary for an extension as apposed to mandatory for ILR. If we consider the entry clearance rules (although for external applications, RFL10), a police caution will generally be a grounds for refusal for 12 months, given that 12 months has passed, and it was your only offence, for which I am sure you are very remorseful and will write as such on your application, you should be ok.