ILR with driving case/conviction (MS90)

[sp79]

Hello All,

I am about to complete 5 years on Tier 1 (General) status soon. I have a case going through the Magistrates' Court for a driving related offence.

In brief: I was clicked going at 35 in a 30 zone in Nov 2009. I had just moved houses, and had forgotten to update my address with the DVLA. Consequently, all the correspondence went to my old address and did not get forwarded on to me. I was convicted of a "Failure to Furnish" offence in absentia, which carries a fine and 6 points (it is coded as an "MS90" by the DVLA). When I did learn of this, I filed to have the conviction set aside, and the case has been rescheduled for a fresh hearing. This will be about 2.5 weeks before my current Leave to Remain is set to expire.

My questions are:

1. Should I apply before the hearing date and disclose the pending court action; or

2. Am I better off waiting for the result of the hearing, and applying afterwards once I know whether I was convicted or not?

3. Assuming I am convicted, what impact might this have on my application, and what can I do to mitigate this? I am a trainee doctor, should I ask for testimonials/references from my consultants, hospital staff and/or patients?

4. There is the further issue of a naturalization application down the road, but I shall look for a way across that bridge when I get to it.

There are no other confounding factors with my application that I am aware of: I have been employed throughout my stay in the UK, don't have any long absences, and of course do not have any other (criminal or otherwise) convictions.

Any advice will be greatly appreciated!

[geriatrix]

1. Should I apply before the hearing date and disclose the pending court action;

The rules in force on the date of application apply, so you may be better off this way if the govt. does change the "criminality threshold" requirements across the board before the date of your hearing. IMHO ..

2. Am I better off waiting for the result of the hearing, and applying afterwards once I know whether I was convicted or not?

If by then rules regarding "criminality threshold" are introduced and enforced for everyone without any allowances / discretion favouring one/more categories of migrants, then your application will be assessed on the basis of new rules.

3. Assuming I am convicted, what impact might this have on my application, and what can I do to mitigate this? I am a trainee doctor, should I ask for testimonials/references from my consultants, hospital staff and/or patients?

Such documents have no relevance. A court conviction is a exactly what it is ... a conviction, and rules associated with it must be followed / applied.

Do note:

The measures outlined in this Statement should not be seen as a definitive account of the requirements that will apply from 6 April 2011. The definitive version is expected to be set out in the Immigration Rules and formal Guidance published in March. The Statement does however represent the Government’s current intentions.

Since no one can tell you if the "criminality threshold" will definitely be introduced on 06-Apr-11 until such time that the changes to immigration rules are published (as suggested), the choice is yours as to which option you should follow - if you wish to make a decision before such changes become known (with adequate details).


regards

[genorp]

Can you apply before 6 April? If so, you would probably want to do so before then.
The difference being that currently you just have to declare any convictions. From the 6th, assuming the new rules that were mentioned in the statement of intent http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary come into force and without any qualification, convictions must be spent.

Criminality test
We will reform the current criminality threshold
for settlement to bring it more in line with that for
citizenship (naturalisation) applicants. All migrants
(except refugees) will need to be free of unspent
convictions when applying for settlement. Those
who are not, and have no other legitimate basis of
stay here, will be expected to leave the UK.

[sp79]

sushdmehta and genorp,

Thanks very much for the info. I think my dates are going to be a bit tight.

1. I got my initial Tier 1 clearance on May 11, 2006, so I will be eligible on May 11, 2011. If they follow the 28-day period strictly, the earliest I can apply is April 13 (coincidentally, my court hearing is also April 13).

2. I got my Tier 1 renewal stamp on May 3, 2008, and it expires on May 2, 2011. If they consider me eligible on May 2/3, I can apply on April 4/5, just beating the rule change.

Can you please confirm that I am eligible on May 11, and so can't (normally) apply before Apr 13? Are they likely to consider my application if I send it in 10 days early?

There is also this, from the FAQs at the bottom of http://www.ukba.homeoffice.gov.uk/briti ... character/

I have a recent conviction for a minor offence. Should I still wait until the conviction has become spent before I apply for citizenship?

We will normally disregard a single conviction for a minor offence resulting in a bind over, conditional discharge or relatively small fine or compensation order, if a person is suitable for citizenship in all other respects. By 'minor offences' we mean speeding or other 'regulatory' offences.

Offences involving dishonesty (for example theft), violence or sexual offences are not classed as minor offences. Drink-driving offences, driving while uninsured or disqualified are also not minor offences.

Is there a firmer definition of "minor offence" somewhere? Or is this left to the examining officer's discretion?

I am really at a loss about what to do here. It will be a shame if a missed address change makes me have to give up my job and my medical training and leave the country (for speeding at 35 in a 30 zone, I was initially offered a speed awareness course, so I would have had nothing on my record).

Thanks again for any advice and help!

[geriatrix]

1. I got my initial Tier 1 clearance on May 11, 2006,

Is this the date of your HSMP approval or the date your entry clearance was effective from or the date you entered UK after obtaining an entry clearance or the date leave to remain was issued subsequent to an in-country (leave to remain) application?

Only if one of the latter two, will you be eligible to apply for settlement 28 days before the 5th anniversary of this date.

So the question is, what event does this date (11-May-2006) signify?


regards

[sp79]

I was already in the country when I applied and was approved (I spent two years, from May 2004 to May 2006, on a Permit-Free training visa; I understand that the period spent under this visa does not qualify for settlement). May 11, 2006 is the date stamped on the "Limited Leave to Remain" visa document in my passport.

[geriatrix]

Then, under current directions, you may apply for settlement no earlier than 28 days before 11-May-11 and no later than the expiry date of your current leave (i.e. - between 13-Apr and 02-May).

Since you cannot apply before 13-Apr-11, which incidently happens to be the same date as your court hearing, you'll know for sure before you apply if changes to be introduced from 06-Apr-11 will affect you or not. So wait for the details to be known.


regards

[dewales001]

Is there a firmer definition of "minor offence" somewhere? Or is this left to the examining officer's discretion?

There is no firmer definition of "minor offence". For example, Driving while not insured can be dealt with a FPN in some part of the country, hence HO classify this as a "minor offence". In other part, this same offence have to go through a court of law, hence HO classify this as a "major offence". I'm afriad, that is the unbalanced nature of the law. It is unnecessarily strict and prohibitive!

However, spoke with a solicitor some few weeks about the requirment (Unspent conviction) and he said In citizenship applications, an argument can be put forward that discretion should be used to grant the application and waive this requirement.

[sp79]

oh well, looks like I am in for a nervous couple of months. A few more questions, just to put my mind (a little bit) at ease:

1. In case the rules do not change in this respect, a conviction should not affect her settlement application?

2. If anyone has any more information/personal experience with if/how they can classify an offence as "minor", please do share.

3. I should probably seek a lawyer's help with the details of my case, the timing, petitioning for classification as "minor" etc. Any recommendations?

Thanks again for all your help!

[Devb]

Hi SP79,
I am not an expert on this but, if your first Tier-1 stamped in May 2006, aren't you eligible for the ILR in 04 years (instead of 5 years) under the Judicial Review on that?

Pl. check that.
Dev

[sp79]

Hello dev,

I have been staying under a rock and just going by the period of the LLR I was granted (2 and 3 years) but the original approval letter I got is dated April 5, 2006 so I must have applied before April 3, 2006 (unfortunately I have lost the original acknowledgement letter). In which case I am eligible to apply right away, before any changes happen on April 6 this year. I am seeing a lawyer on Wednesday to help sort all this out, but also preparing all the paperwork I will need in view of an immediate application.

[bani]

Hello dev,

I have been staying under a rock and just going by the period of the LLR I was granted (2 and 3 years) but the original approval letter I got is dated April 5, 2006 so I must have applied before April 3, 2006 (unfortunately I have lost the original acknowledgement letter). In which case I am eligible to apply right away, before any changes happen on April 6 this year. I am seeing a lawyer on Wednesday to help sort all this out, but also preparing all the paperwork I will need in view of an immediate application.

This does make a big difference. You can apply for SAR = Subject Access Request, it's one of the sticky threads (so look for that to find instructions) and ask for all your UKBA documents. You will get back a copy of your HSMP application with date stamped on it, along with other documents.

You probably did apply before 3 April 2006. And this would be the best scenario.

But even if you didn't, you are still covered by a HSMP Judicial Review of 2009 (as you applied to HSMP before Nov 2006). Which means that for ILR, you don't need Life in the UK Test AND they can't impose this criminality threshold on you. This is because UKBA can't impose ILR requirements that were only brought in after Nov 2006 on this particular group of HSMP migrants.

Good luck!

[sp79]

I found a copy of the HSMP application I had sent in, and realized I had asked for an email receipt. Dug through old email, and found a receipt acknowledgement dated March 24, 2006. So no need of an SAR either

bani: if I understand you correctly, the HSMP Forum JR held that conditions under which HSMP applications prior to Nov 2006 could not be altered, and this includes the criminality threshold for ILR. Is that right?

[bani]

bani: if I understand you correctly, the HSMP Forum JR held that conditions under which HSMP applications prior to Nov 2006 could not be altered, and this includes the criminality threshold for ILR. Is that right?

Yes, that is right. All original (pre-2006) conditions that pertain to HSMP extensions and ILR are the only ones that apply to you.

But UK citizenship, the next step, is outside the scope of the JR. So they can impose new rules on you, should you want to take that step.

Great that you qualify for ILR after four years! Good luck with your ILR application.

[mac456]

bani: if I understand you correctly, the HSMP Forum JR held that conditions under which HSMP applications prior to Nov 2006 could not be altered, and this includes the criminality threshold for ILR. Is that right?

Yes, that is right. All original (pre-2006) conditions that pertain to HSMP extensions and ILR are the only ones that apply to you.

But UK citizenship, the next step, is outside the scope of the JR. So they can impose new rules on you, should you want to take that step.

Great that you qualify for ILR after four years! Good luck with your ILR application.

No, I think criminal threshold was not a part of JR and Home office still controls it even for pre Nov 2006 applicants.

Read the HSMP JR policy doc on settlement, goto last page para 28:

-----------------------------
General Grounds for Refusal
28. Where the migrant falls for refusal under the General Grounds for Refusal in paragraphs 320-322 of the Immigration Rules, we will refuse their application even if it otherwise qualifies under the terms of this policy. This might happen, for example, if they have broken United Kingdom immigration law or have a criminal conviction.
-----------------------------

refusal based on convictions comes under general ground of refusal and by writting the above para in JR policy doc I think they still control it and can apply to you.

THATS JUST MY INTERPRETATION, READ FOR YOUR SELF.

I suggest apply before april 6, why take risk.

Read the Booklet AN, if you wana know what can be considered as minor offence ( AN booklet is for nationality).

http://www.ukba.homeoffice.gov.uk/sitec ... ide_an.pdf