Amendment 185G - Convictions shall never become spent

[Obie]

This goes against all the principles of the ROO Act.

It is designed to wipe the slate clean.

Someone who committed an offence over 10 years, probably when he was a juvinile, Is now a changed person, living a law abiding life, working, paying taxes and possible a symbol of admiration in his community, should not continue to be punished forever by UKBA,especially when society has decided he is rehabilitated and their convictions should not be disclosed in all but few reasonable exceptions.

It is utterly ridiculous. There is no discretion on the part of UKBA. These people will be treated as having unspent convictions, for all immigration purpose.

This is why ILPA has rightly expressed concern, and i fully share their concern.

We all know how viciously UKBA exercise discretion when it is conferred on them. That is discretion. This proposed legislation has no discretion on it.

[John]

It is utterly ridiculous. There is no discretion on the part of UKBA.

No wonder you are worried if you think that UKBA have no discretion. Clearly they do have discretion.

These people will be treated as having unspent convictions, for all immigration purpose.

Are you saying that people applying for a school job are treated as having unspent convictions? Because if that is what you are saying, I can assure you that is not the case.

[Obie]

There is no discretion in the language of the legislation itself. It simply provides an exemption from the rules for immigration purpose. I am not a mind reader, so unsure UKBA will provide one in its guidance to its caseworker.

There is no phrase in the wording of the legislation that indicates a discretion will be conferred on UKBA.

I am fully supportive of the view that spent conviction should be disclosed in certain cases. There are public interest and safety issues. Especially were a position involves working with children and vulnerable adult.

In UKBA's case, there is no clear public interest of prevention, as society has agreed by means of legislation that these people are changed and of good character in all sphere of society. UKBA are essentially saying, in our view this people should be considered of bad character for life.

This cannot be good news at all.

[John]

There is no discretion in the language of the legislation itself. It simply provides an exemption from the rules for immigration purpose. I am not a mind reader, so unsure UKBA will provide one in its guidance to its caseworker.

There is no phrase in the wording of the legislation that indicates a discretion will be conferred on UKBA.

With respect I think you are confusing two points. Firstly the new legislation includes an ability a request for information about all convictions, including spent convictions. But it does not force them to ask any particular question. They will still have full discretion about how they draft the questions on their various applications form. It is just that the scope of those questions will be permitted to be slightly wider than previously.

Secondly,as regards how UKBA deal with applications, for the great majority they have discretion whether to grant it or not. (Exceptions are rare but include applications for Registration as British under section 1(3), which is an "entitlement" application.)

The ability to use discretion is unchanged by the new legislation.

[settled_now]

Maybe this will ease some minds in regards to minor traffic violations:

"Technically any conviction in a court of a criminal offence is a criminal record. In practice, however, many motoring offences are not deemed to be crimes for criminal record purposes"

http://www.inbrief.co.uk/court-judgemen ... ecords.htm

If a motring offence is not deemed to be a crime for criminal record purposes, they WILL NOT show up on a CRB check and are therefore not subject to the Rehabilitation of Offenders Act. i.e. there is no rahabilitation period since there is nothing to be spent.

As for REAL criminal offences, a popular saying comes to mid "If you can't do the time, don't do the crime". In other words, is you don't want to be denied ILR / Ctiizenship, pay attention to the UK criminal code!

[legit2011]

@settled_now... I would disagree with you on this statement....... "If you can't do the time, don't do the crime". In other words, is you don't want to be denied ILR / Ctiizenship, pay attention to the UK criminal code!.... I do not want to believe that people would intentionally go against any law or policy......At the momnet it is kinda hazzy to see clearly what this whole exercise will result to..I would want to believe that in the coming days it will be clearer....I hope it comes out positve for all...it wouldnt make sense if UKBA will be exempted from my point of view...Most of the immigrants I believe have contributed positively, paid due tax and NI contributions and if they have to be denied ILR just for the sake of one mishap/conviction or be exempted from this then something is wrong somewhere.
I know where you are coming from...if you (immigrants) dont like it then tuff...but Britain as we all know it is not of that image. I believe or rather want to believe that this will surely turn out positive and would like to say a big kudos to Lord Dholakia for taking this up and moving it up to this point

[settled_now]

just for the sake of one mishap/conviction...
I know where you are coming from...if you (immigrants) dont like it then tuff...

Before you put words into my mouth, remember I am an immigrant to this country also. I have worked the majority of my 25 year IT career in countries other than my birth - I was born in Canada.

I have received permanant residence in Germany as well as the UK. If I had been convicted of a criminal offence in either of these two countries and denied settlement, that would be only my fault and not that of the country making the rules.

As a matter of fact, I broke the immigration rules by working in the US without a visa. I cannot even take my daughter to Disneyworld or go with the boys for a jaunt to Vegas. 100% my fault - nobody to blame but me.

You describe a conviction for a criminal act as a "mishap". The UKBA definitely does not view a criminal conviction as a mishap and that is their right! They make up the rules and not you. Even if they change the rules, that is their right.

Again, minor traffic violations are not criminal offences and that's not what I am to referring to.

[settled_now]

I do not want to believe that people would intentionally go against any law or policy......

Firstly, ignorance of the law is no excuse.

Secondly, the majority of the motoring offences classified in the country as crimes eg. driving without a license, driving without insurance, driving while intoxicated etc. are widely classified as crimes around the world.

Most countries around the world do not give permanant residence or citizenship to those with criminal records.

[legit2011]

@settled_now......I was of the opinion this forum is to discuss ideas (positive ideas), constructively address immigration issues by allowing people to air their views and also assist people with querries on immigration issues...hence I signed up...Am I of the right opinion???....Does one status or situation have anything to do with this???....I do not think it's right for one to refer to ANother's plight in discussions...strange!!

[Obie]

Oh, now I see...there was a little "mishap" regarding drink driving:

http://immigrationboards.com/viewtopic. ... highlight=

I do not want to believe that people would intentionally go against any law or policy......

So what you're saying is that was not intentionally against any law or policy?! Ok.

Drink driving is sufficient to have you barred from entry to quite a few countries and denied settlement in many more.

We are discussing a piece of legislation and its potential effect on the lives of people.

Please desist from personal attacks and insult.

The debate has to stay within that remit.

Any digression will not be tolerated.

Take this as a warning.

[settled_now]

Fine, my edited post above is fully compliant with the rules of the forum.

[st_allis]

Maybe this will ease some minds in regards to minor traffic violations:

"Technically any conviction in a court of a criminal offence is a criminal record. In practice, however, many motoring offences are not deemed to be crimes for criminal record purposes"

http://www.inbrief.co.uk/court-judgemen ... ecords.htm

...

...!

I am sorry but links to the private sites are not good enough for the purpose of this discussion. To prove something please use "gov.uk" links.

We are talking about UKBA rules which are slightly different from the rules of other government agencies.

Let me give you an example: Even fixed penalty tickets potentially could be a problem according to Guide AN
http://www.ukba.homeoffice.gov.uk/sitec ... ide_an.pdf

Fixed penalty notices will not normally be taken in to account, unless you have had more than one fixed penalty notice in the last 12 months. In that case you may wish to wait to make your application until you have no more than one fixed penalty notice in the 12 month period before applying.

Furthermore, failure to provide details of any motoring offence which was dealt with in court may result in refusal of the application.
Proof: http://www.ukba.homeoffice.gov.uk/briti ... character/

You must give details of all unspent criminal convictions. This includes road traffic offences but not fixed penalty notices (such as speeding or parking tickets) unless they were given in court.

As you can see road traffic offences, which dealt with in court, are "criminal enough" for UKBA.

[Obie]

I hope people will appreciate that the grant of PR does not only benefit an applicant, but it helps the host country also. It ensure people are integrated and foster community cohesion.

It enable long time committment and loyality to a nation.

It is not in the UKs interest to have a large proportion of long time non nationals.

[cobra]

According to my opinion It is a discrimination against immigrants if the Justice Department & UKBA applied their new law just to punish immigrants for the rest of our life in UK, just because a person made a mistake of committing a crime. Even thought you spend the conviction but the UKBA will still be able to give you that excuse no to grant you a BRITISH/ILR /DLR/REFUGEE STATUS. This is very unfair

[Hey_You]

Dear John,

I agree with you that 185F is good reform, and long overdue.

In my view mandatory disclosure of any convicton to UKBA is very sensible and somewhat required.

According to current UKBA law, applicants with unspent conviction are barred to apply for ILR or naturalization.

However, proposed 185G say NO REHABILITATION EVER for immigration purpose, therefore for immigrants all/any convictions (within 185F) remain UNSPENT for life when it comes to extention, ILR or naturalization.

Therefore if 185G is passed as it is, no immigrants would be permitted to apply for ILR or natarilaztion as per as current UKBA law (no application for un-spent conviction) bar them to apply.

185G go even further, that legal immigrants/visitors with conviction (as per 185G, their conviction will never be spent) could be subject to deportation or refusal to re-entry at the returning port.

These pose a big diffculties for employers and immigrant families as the scope of 185G could make any immigrants with any conviction (even within 185F) will be within the risk of becoming outlaw.

It seems the law has not been thought through or any discussion took place with the stakeholders (IPLA, etc).

It seems you have considerable knowledge on the subject, kindly pls let me know if you would read the proposed law differently and why.

COPY OF THE PROPOSED LAW BELOW, COPIED FROM THE PROPOSED BILL.


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.

(2) In this section—

“immigration officer” means a person appointed by the Secretary of State as an immigration officer under paragraph 1 of Schedule 2 to the Immigration Act 1971,

relevant immigration decision” means any decision, or proposed decision, of the Secretary of State or an immigration officer under or by virtue of the Immigration Acts, or rules made under section 3 of the Immigration Act 1971 (immigration rules), in relation to the entitlement of a person to enter or remain in the United Kingdom (including, in particular, the removal of a person from the United Kingdom, whether by deportation or otherwise),

“relevant nationality decision” means any decision, or proposed decision, of the Secretary of State under or by virtue of—

(a) the British Nationality Act 1981,

(b) the British Nationality (Hong Kong) Act 1990, or

(c) the Hong Kong (War Wives and Widows) Act 1996,

in relation to the good character of a person.

(3) The references in subsection (2) to the Immigration Acts and to the Acts listed in the definition of “relevant nationality decision” include references to any provision made under section 2(2) of the European Communities Act 1972, or of EU law, which relates to the subject matter of the Act concerned.””
[/url][/quote]

[John]

According to current UKBA law, applicants with unspent conviction are barred to apply for ILR or naturalization.

The crux of the matter! Could you now kindly produce a link to the relevant "current UKBA law"? And I do mean "law", not guidance to UKBA staff.

[Hey_You]

According to current UKBA law, applicants with unspent conviction are barred to apply for ILR or naturalization.

The crux of the matter! Could you now kindly produce a link to the relevant "current UKBA law"? And I do mean "law", not guidance to UKBA staff.

-Thanks so much for your response.

It's a good point.

However, why are applicants for ILR and naturalization told to wait till all/any convictions they may have to become spent before applying, even minor motoring conviction with fixed fines? (pls see the UKBA guidelines attached to Naturilaztion applications form)
http://www.ukba.homeoffice.gov.uk/briti ... alisation/

Even IPLA is extemely critical to the proposed bill and has detail explanation on this proposed bill. Pls see: http://www.ilpa.org.uk/data/resources/1 ... enders.pdf

[Hey_You]

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.

Could you not kindly write to your MP now before the bill is passed so they can raise the questions as it stands this passage has got many vague clauses open to wide interpretion.

If the effect of rehabilitation does not apply to immigration decesion then a clear cut guidelines is required.

[makkan00]

Most interesting discussion going on here....

If we interpret it correctly and if 'guidelines' to UKBA are provided properly / positively, it can be a positive move as John mentioned earlier.

However, as per Amendment 185G, if everybody will have to disclose all convictions (irrespective of being spent or unspent) and based on that disclosure, UKBA staff is given discretion to take decision...things will go negative for most of immigrants.


As there are no clear cut guideliness but getting the subject b.w lines does not seem to give any favour to immigrants.


I am going to put forward an example here, and see how will it effect people under old guideliness and new guideliness.

Unfortunately Mrs A has been involved in a car accident recently where police had informed her that she would get summon from the court for careless driving. During the court hearing she plead guilty and accepted 6 points and £400 fine.

Now comparing OLD vs NEW system;

1) Implement this into practice and under current immigration rules:

She has to wait for 5 years to make this conviction as 'spent' and later apply for ILR, however she will get ILR eventually.


2) As per New system
She will have to wait for 1 year (Amendment 185F) before fine from court can bcome 'spent'.

There can be two interpretations of next step;

a) She has to disclose it on her ILR application as per Amendment 185G and rely on the discretion of UK BA staff to deal with it (depending on how they have been instructed to deal with such situation and how they have been instructed to use 'discretion').
Considering this as Careless driving conviction, how will UKBA deal with it? Will they grant ILR to Mrs A?

b) Second interpretation (worst) is where no offence is ever considered as spent (which is totally opposite to Amendment 185F, which encourages to reduce rehabilitation time) and such people cannot ever apply for ILR / Naturalisation. Now if there is no 'spent' term for immigrant, what will happen?
Considering this, Mrs A's offence cannot become 'spent' and she cannot apply for ILR/ Naturalisation ever. Where does she stand?


Considering all this and after reading all of it, it left me totally confused. I guess everybody should write to their MPs and request them that UK BA should be given proper and clear information.

[makkan00]

I am looking forward to hear progression on this topic.

[poundcake]

So, since the LASPO Bill has passed, has anyone heard how the UKBA will be treating convictions that would have otherwise been spent?

My particular interest is in relation to the "Good Character" requirement of form UKM...