Amendment 185G - Convictions shall never become spent

[dimsav]

In Government Amendment 185G, the government is going to shorten the term, when convictions become spent, and also to introduce a new law, when convictions shall never become spent for immigration. Namely, they have suggested to:

Insert the following new Clause — No rehabilitation for certain immigration or nationality purposes
Before section 57 of the UK Borders Act 2007 (and after the italic cross-heading before that section) insert—
56A No rehabilitation for certain immigration or nationality purposes
(1) Section 4(1), (2) and (3) of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation) do not apply—
(a) in relation to any proceedings in respect of a relevant immigration decision or a relevant nationality decision, or
(b) otherwise for the purposes of, or in connection with, any such decision.
...

Presumed Purpose
To provide that in relation to any application for leave to enter or remain in the UK, in connection with any removal or deportation from the UK, or in relation to any British citizenship or nationality application, disclosure of any conviction, however minor and long ago spent, may be requested and required. In relation to these applications or proceedings, a rehabilitated person would be treated as someone who has been convicted or charged with the relevant offence, despite the conviction being spent.

The amendment seems to have already been discussed and agreed in Parliament on 15th February 2012.

If this becomes a law now, it will have a devastating effect for many immigrants here on their route to both settlement and naturalisation...

[Obie]

i believe it will be challenged if it has retrospective effect.

I can understand it will affect new convictions from date of commencement.

[John]

dumsav, thank you very much for drawing this matter to readers of this Board.

I have investigated further and find that the amendments were added to the Bill in the House of Lords .... click here.

I believe there is good news and some other news. Firstly, amendment 185F, I believe that this is very good news. Read the Hansard link above for full details. I publicly congratulate Lord Dholakia for his persistence in this matter. Great news, for example, that a sentence of a fine will become spent after just one year rather than the current five years.

Now turning to amendment 185G. Clearly IPLA does not like it, and fears it, but I have to say that my own view is not that negative. All it is doing is saying that when making an application to UKBA you need to disclose convictions however long ago, but it is not a bar to the application being successful.

I am a member of some School Governing bodies. I am absolutely delighted to know that it is already law that anyone applying for a job in a school needs to disclose all their convictions, however long ago, even if such convictions are spent. Wouldn't it is bad if someone had a conviction involving child abuse say 20 years ago, long since spent, was not required to disclose that conviction when applying for a job in a school. I am delighted that they are indeed required to disclose it, as made clear on all applications forms for school jobs.

So amendment 185G, the fact that for UKBA applications there will be a requirement to disclose even spent convictions, should also be viewed in such a same light. For example if someone was involved in armed robbery years ago, and that conviction is now spent, surely it is better that UKBA have that information before them when making their decision.

But let's look at the practical effects of amendments 185F and 185G, as they might reasonably might apply to some members of this board. I have lost count of the number of people on this board asking questions about motoring convictions that have resulting in a Court imposing a fine. Particularly where the criminal offence involves a conviction for driving without insurance. The fact is that currently a fine has a 5-year period before becoming spent, leading to problems with Naturalisation applications for that period of time. But now, thanks to amendment 185F, that is reduced to just one year. Admittedly even after that time the Naturalisation application form might ask for information about such spent application, but at least there is not a bar to applying for 5 year.

So all in all, my own view is that amendment 185F in very good news, and I have no particular concerns about 185G.

[dimsav]

John, many thanks for your views and clarifications on the matter. Indeed, amendment 185F sounds very promising.

However, my primary concern is about amendment 185G and the way it will be implemented in practice (if it will become a law). Taking literally, the currently adopted UKBA policy of "no ILR for those with unspent convictions" plus the proposed "removal of the rehabilitation period for immigration purposes" would just mean an automatic lifetime ban for many (who are not criminals at all). For example, an ILR application from somebody with minor traffic offence taken in court (e.g., due to driving on international license), etc. Of course, this sounds a bit paranoid and against a common sense. So, I think a lot will have to be clarified in future exact wording / instructions to caseworkers according to which they will implement the policy in practice...

@Obie: The intention is that the proposed change, once approved, will have immediate, i.e. retrospective effect. IPLA is clearly concerned about it, too.

[John]

Taking literally, the currently adopted UKBA policy of "no ILR for those with unspent convictions" plus the proposed "removal of the rehabilitation period for immigration purposes" would just mean an automatic lifetime ban for many

It means no such thing! I really do think you are misreading the situation totally!

To me 185G merely means that there is no exemption for spent applications when submitting the application. But that is not to say that the conviction is not spent! It is! The Rehabilitation of Offenders Act says so!

All it means is that UKBA will have a full picture about the applicant, when deciding how to exercise their discretion when making their decision.

Going back to my previous mention of employment in a school, full disclosure needs to be made of all convictions, even if they are spent. Just because someone is applying for employment in a school, that does not make the conviction unspent.

The same will now apply to UKBA applications.

[Obie]

I believe there is a significant difference between having to declare an unspent conviction and a conviction never becoming spent for the purpose of immigration.

Parliament has enacted legislation under the 1974 reabilitation of offenders act that a conviction becomes spent after a rehabilitation period, and UKBA has decided to get an exemption from it.

Yes if people are working with vulnerable adult, then unspent conviction has to be disclosed, but the purpose of UKBA exemption is not to protect people, but to punish people, and we have all seen how they act when discretion is conferred on them.

I fully share the views and concern of ILPA.

Everyone welcome the act as far as reducing the time for conviction to become spent, but very few people will welcome the UKBA's exemption.

I am sure people have not had the last of this.

You have a government talking about integration, and then imposing these anti integration law, which will essentially bar people from applying from applying for settlement.

This rule is designed to benefit people who made mistakes in the past and want to change their ways, and it should not be used for the opposite purpose, where immigrants are concerned.

[dimsav]

It means no such thing! I really do think you are misreading the situation totally!

I wish I am misreading it...

To me 185G merely means that there is no exemption for spent applications when submitting the application. But that is not to say that the conviction is not spent! It is! The Rehabilitation of Offenders Act says so!

I understand that the idea is to disclose all convictions, both spent and unspent, at the time of application. The main question is what for? Whether it is indeed to

have a full picture about the applicant, when deciding how to exercise their discretion when making their decision.

... or to introduce a new bar when making their decision? I am afraid the actual objective is just to change an overall climate in this country, making immigration unwelcome overall. With no control of the government on EU flow (Tier 1/2 are not so important), such a measure seems to be the only way of bringing the numbers to magical "tens of thousands of the brightest and the best"...

[John]

We shall just have to differ on this one. You think this is a sinister move, I think it is a sensible one.

But it pleases me greatly that amendment 185F has been incorporated, and hopefully we agree on that.

[Onnel]

All it means is that UKBA will have a full picture about the applicant, when deciding how to exercise their discretion when making their decision.

Why do they need this picture? To make a decision. So, they will use this information to make the decision. And we do know how do they use it - to disallow ILR.

[John]

And we do know how do they use it - to disallow ILR.

Surely that would depend upon the nature of the spent conviction! If it was for say armed robbery, it is highly likely you are right. But if it was for a motoring offence, in my opinion highly unlikely you are right, if the conviction is indeed spent.

Staff instructions will emerge, for the benefit of UKBA staff looking at applications. The Bill is still in the House of Lords, but will get sent to the House of Commons in due course. At the appropriate time I shall write to my MP asking him to question Home Office Ministers in an effort to get some idea how the new legislation will be applied.

[settled_now]

WTF? What kind of person argues that it's unfair for the UKBA to require declaration of all criminal convictions in order to settle / become a citizen?

If you can't live a lifestyle that falls within the legal parameters of a country you choose to immigrate to, why bother immigrating to it?

[st_allis]

WTF? What kind of person argues that it's unfair for the UKBA to require declaration of all criminal convictions in order to settle / become a citizen?

If you can't live a lifestyle that falls within the legal parameters of a country you choose to immigrate to, why bother immigrating to it?

Let me explain what it means in practice.
If you stopped with international driving license because of minor driving offence you will not be issued with a fixed penalty ticket. Your case will be sent to court instead.
This is the way how you can get a sentence which currently require 5 years to be spent.
Now they want it to be "unspendable" ever.

Most likely UKBA will use newly granted power to prevent people from becoming permanent residents.

[st_allis]

We shall just have to differ on this one. You think this is a sinister move, I think it is a sensible one.

But it pleases me greatly that amendment 185F has been incorporated, and hopefully we agree on that.

John, I believe UKBA will use a discretion to judge cases in question.
But this is a big difference to have a right for settlement or depend on caseworkers assessment.

They explicitly mention that they want to apply discretion (reject more ILR and citizenship application)

These reforms exempt UKBA from the ROA enabling them to operate wholly outside the Act and take into account information relating to an applicant’s spent and unspent convictions

It does not really matter if 185F make spending terms shorter if UKBA is wholly outside of the act.

[settled_now]

Let me explain what it means in practice.
If you stopped with international driving license because of minor driving offence you will not be issued with a fixed penalty ticket. Your case will be sent to court instead.
This is the way how you can get a sentence which currently require 5 years to be spent.
Now they want it to be "unspendable" ever.

Most likely UKBA will use newly granted power to prevent people from becoming permanent residents.

That's complete and utter nonsense. Minor driving offences are not of any concern to UKBA. There is no need to have a minor driving offence "spent".

UKBA is concerned about criminal convictions. Driving with an international license for more than a year, driving without insurance or drink driving are all concerns for the UKBA.

[John]

This is the way how you can get a sentence which currently require 5 years to be spent.
Now they want it to be "unspendable" ever.

Sorry, I just have to say ..... that is utter rubbish!

[st_allis]

Let me explain what it means in practice.
If you stopped with international driving license because of minor driving offence you will not be issued with a fixed penalty ticket. Your case will be sent to court instead.
This is the way how you can get a sentence which currently require 5 years to be spent.
Now they want it to be "unspendable" ever.

Most likely UKBA will use newly granted power to prevent people from becoming permanent residents.

That's complete and utter nonsense. Minor driving offences are not of any concern to UKBA. There is no need to have a minor driving offence "spent".

UKBA is concerned about criminal convictions. Driving with an international license for more than a year, driving without insurance or drink driving are all concerns for the UKBA.

utter nonsense?

Let me explain it to you in more details.
Minor driving offence itself is not a problem for UKBA.
The fact that you were fined (sentenced) in court is a problem.

Fine in court constitutes an unspent conviction.
Current caseworker guidance does not make any difference between unspent convictions. According to Rehabilitation of Offenders Act 1974 period for fine offence is 5 years.

It is how it works right now.

[Onnel]

WTF? What kind of person argues that it's unfair for the UKBA to require declaration of all criminal convictions in order to settle / become a citizen?

If you can't live a lifestyle that falls within the legal parameters of a country you choose to immigrate to, why bother immigrating to it?

Keep calm.

We are not talking about murders/thieves.

A person who paid a fine (via a court) for a minor driving offence must wait for 5 years to "spend" this conviction now. And can not get ILR. This is a practice.

If you find it fair... It is up to you. But do British people drive 100% perfect? No. So, howcome do you say "you can't live a lifestyle ... of a country". Their lifestyle is the same, they do make minor driving offences.

[John]

A person who paid a fine (via a court) for a minor driving offence must wait for 5 years to "spend" this conviction now. And can not get ILR. This is a practice.

So we should be grateful that the spent period for a fine is being reduced to just one year ..... amendment 185F.

[st_allis]

A person who paid a fine (via a court) for a minor driving offence must wait for 5 years to "spend" this conviction now. And can not get ILR. This is a practice.

So we should be grateful that the spent period for a fine is being reduced to just one year ..... amendment 185F.

It is not reduced for migrants because the same amendment exclude UKBA from the ROA 1974 act.

After this reform UKBA will be free to set any period they like for any conviction (spent or unspent).

It could happen that conviction which would be already spent accordind to ROA 1974 is still used by UKBA to prevent somebody from getting ILR or Citizenship.

[John]

In my opinion you are totally overstating the position. We are just talking here about need to disclose, in the same way as someone applying for a job in a UK school needs to disclose, irrespective of whether a conviction is spent or not.

But you are making a jump from ..... they know about a spent conviction = application will be refused ..... and to me that it totally illogical. In the same way as someone applying for a school job needs to disclose even minor convictions .... that does not lead to automatic rejection of the job application. Why would it?

[settled_now]

http://www.ukba.homeoffice.gov.uk/briti ... character/

"What is an unspent conviction?
If you have been convicted of a criminal offence you must declare your unspent convictions but do not need to declare ones that are spent. "

Again, a minor traffic offence - eg. failing to signal or stopping in a box junction are not criminal offences.

[John]

"What is an unspent conviction?
If you have been convicted of a criminal offence you must declare your unspent convictions but do not need to declare ones that are spent. "

That is the current position, but a position that will change when the Bill becomes an Act.

Again, a minor traffic offence - eg. failing to signal or stopping in a box junction are not criminal offences.

That depends whether they are dealt with by means of a Fixed Penalty Notice, or by a Court.

[Onnel]

But you are making a jump from ..... they know about a spent conviction = application will be refused ..... and to me that it totally illogical. In the same way as someone applying for a school job needs to disclose even minor convictions .... that does not lead to automatic rejection of the job application. Why would it?

John, let me repeat your words:

I am a member of some School Governing bodies. I am absolutely delighted to know that it is already law that anyone applying for a job in a school needs to disclose all their convictions, however long ago, even if such convictions are spent. Wouldn't it is bad if someone had a conviction involving child abuse say 20 years ago, long since spent, was not required to disclose that conviction when applying for a job in a school. I am delighted that they are indeed required to disclose it, as made clear on all applications forms for school jobs.

Ok, you want to see the list of spent convictions to make a decision. And your decision will be based on the information from that list of spent convictions. And you can tell the person: "You will not get this job.", keeping in mind: "because you was a criminal 20 years ago."

If you would not have the list of those 20 years old things, you'd make other decision.

So, the list does matter! The same with UKBA, the more info they have, the more reasons to decline an application they have.

[John]

Did I deny that? It depends upon the conviction, and how long ago it was. For example, someone applying for a job in a school who was convicted of a child molestation offence many years ago, they would be unlikely even to get short-listed. And for UKBA say a conviction for armed robbery, even many years ago, would raise serious doubts in their mind.

Again, we need to see the detailed instructions to be given to UKBA staff, and again I shall write to my MP at the appropriate time, prompting him to question Ministers about that.

[settled_now]

Again, a minor traffic offence - eg. failing to signal or stopping in a box junction are not criminal offences.

That depends whether they are dealt with by means of a Fixed Penalty Notice, or by a Court.

Nonsense. A minor traffic offense is not a criminal charge regardless of how it's dealt with.

Needing to declare the traffic offense ( due to court ) does not suddenly make it a criminal offense.

For those that are just so hung up with this: just go out and get a full UK license and take public transport in the interim. You're talking a year maximum - since your foreign license is no longer valid after that.

Big damn deal!