Criminality Clarification !

[londener]

Friends and seniors here,

As we are aware of criminality check rules have been changed from 13th December ,2012 as follows for settlement or ILR.
I am a little bit confused about the words and terms used on part( iv ) as copied below.

As a result, general grounds of refusal (Part 9 of the immigration rules) will be amended to include the following changes with regards to criminality threshold in context of ILR applications:
322 wrote:
(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.”


Here in (iV) the words used non custodial sentence and out of court disposal are not clear to me.Could anyone here please clarify what do they mean ?
-For example a simple caution received from Police on a criminal offence which has no court involvement and custodial sentence is included in this category or not ??.Does a simple caution need to spend 24 months?

In another note, to keep the peace of mind what would be the best way to get the report on criminality to address this point ?.
Does any department can say that you are eligible for settlement on the ground of criminality ?

I am grateful for your due information.
Londener

[alanwong]

Friends and seniors here,

As we are aware of criminality check rules have been changed from 13th December ,2012 as follows for settlement or ILR.
I am a little bit confused about the words and terms used on part( iv ) as copied below.

As a result, general grounds of refusal (Part 9 of the immigration rules) will be amended to include the following changes with regards to criminality threshold in context of ILR applications:
322 wrote:
(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.”


Here in (iV) the words used non custodial sentence and out of court disposal are not clear to me.Could anyone here please clarify what do they mean ?
-For example a simple caution received from Police on a criminal offence which has no court involvement and custodial sentence is included in this category or not ??.Does a simple caution need to spend 24 months?

In another note, to keep the peace of mind what would be the best way to get the report on criminality to address this point ?.
Does any department can say that you are eligible for settlement on the ground of criminality ?

I am grateful for your due information.
Londener

I have the same question.
I called UKBA today on 08706067766 and was told that they could not advise me on how a simple caution affects ilr application. I was also told that they did not process ilr applications and it is up to caseworkers to make decision. I was told that I should be clear about anything including cautions in the application form.

[Gagan1986]

Friends and seniors here,

As we are aware of criminality check rules have been changed from 13th December ,2012 as follows for settlement or ILR.
I am a little bit confused about the words and terms used on part( iv ) as copied below.

As a result, general grounds of refusal (Part 9 of the immigration rules) will be amended to include the following changes with regards to criminality threshold in context of ILR applications:
322 wrote:
(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.”


Here in (iV) the words used non custodial sentence and out of court disposal are not clear to me.Could anyone here please clarify what do they mean ?
-For example a simple caution received from Police on a criminal offence which has no court involvement and custodial sentence is included in this category or not ??.Does a simple caution need to spend 24 months?

In another note, to keep the peace of mind what would be the best way to get the report on criminality to address this point ?.
Does any department can say that you are eligible for settlement on the ground of criminality ?

I am grateful for your due information.
Londener

Please state what is date of offence, type of offence and fines given?

[alanwong]

Please state what is date of offence, type of offence and fines given?

for example,
middle of 2012, a simple caution (battery) issued by police.
This shows on CRB.

[Gagan1986]

Please state what is date of offence, type of offence and fines given?

for example,
middle of 2012, a simple caution (battery) issued by police.
This shows on CRB.

If you have a simple caution issued by police, you can normally get away with it. But its totally at the discretion of the CW. You should mention it on the form though.

[alanwong]

Please state what is date of offence, type of offence and fines given?

for example,
middle of 2012, a simple caution (battery) issued by police.
This shows on CRB.

If you have a simple caution issued by police, you can normally get away with it. But its totally at the discretion of the CW. You should mention it on the form though.

I tend to agree with you, and wishfully think so.
Someone who had a simple caution ever asked for ideas about the effect of simple caution on ILR. Eventually he got his ILR. His caution was within 24 months preceding to his application date. He also told me he mentioned it on the form and wrote a cover letter to explain it, but the caseworker was not interested in it at all. He got his ILR straightaway.

My concern is that a simple caution is a kind of out-of-court disposal and is recorded, which falls under the general grounds for refusal (paragraph 322-1C).

[Gagan1986]

Correct. You have a point though. But I would defo recommend if you wish to apply for ILR, take a covering letter with you in case if it comes down to it. Rest you can only find out when the judgement day will come. Good luck

[aggbbs]

Hi,

regarding criminality issue, I think you are not a criminal unless you answer 'GUILT' in court or through post and COURT issued the sentence
I am not an expert but it is better not to mention any caution if what ukba are asking for is a criminal record.
If it then comes up you can innocently say you never thought it was what mentioning. And better to go for PEO appointment so you could explain.
That is my opinion.
Cheers.

[sayome_now]

This is what Chapter 18 to Annex D The good character requirement said about 'Cautions'

Cautions
3.5.5 As a caution forms part of a person’s criminal record, when determining whether an applicant meets the "good character" requirement, caseworkers must take them
into account. Where the application was made on or after 13 December 2012 a caution comes within the ‘non custodial offence’ threshold. As such, where someone has a caution within 3 years of their application, it should be refused.
Where the application was made on or before 12 December 2012, cautions would not normally be taken into account when assessing the good character requirement unless they fall into one of the following
a. If the caution or cautions are of a sexual nature that require the individual to
be included on the Sex Offenders Register. Any application received whilst
the individual is subject to reporting requirements on the Sex Offenders
Register should be refused (see section 5 for further guidance).
b. If the individual has received multiple cautions that show a pattern of
offending, which causes harm to other individuals or to the community in
general, and which, on the balance of probabilities, indicates the applicant is not of good character.

[alanwong]

This is what Chapter 18 to Annex D The good character requirement said about 'Cautions'

Cautions
3.5.5 As a caution forms part of a person’s criminal record, when determining whether an applicant meets the "good character" requirement, caseworkers must take them
into account. Where the application was made on or after 13 December 2012 a caution comes within the ‘non custodial offence’ threshold. As such, where someone has a caution within 3 years of their application, it should be refused.
Where the application was made on or before 12 December 2012, cautions would not normally be taken into account when assessing the good character requirement unless they fall into one of the following
a. If the caution or cautions are of a sexual nature that require the individual to
be included on the gender Offenders Register. Any application received whilst
the individual is subject to reporting requirements on the gender Offenders
Register should be refused (see section 5 for further guidance).
b. If the individual has received multiple cautions that show a pattern of
offending, which causes harm to other individuals or to the community in
general, and which, on the balance of probabilities, indicates the applicant is not of good character.

This is for citizenship, unless the requirement for citizenship and pr is the same.
It also says 'should be refused', which means it is discretionary.

[londener]

Please state what is date of offence, type of offence and fines given?

for example,
middle of 2012, a simple caution (battery) issued by police.
This shows on CRB.

If you have a simple caution issued by police, you can normally get away with it. But its totally at the discretion of the CW. You should mention it on the form though.

Same here !!
Middle of 2011 and a simple caution on Criminal damage.
I think it should spend 24 months before applying ILR as per 13 Dec. 2012
I am here looking for the assistance of legal definition of the word " non custodial sentence and out of court disposal .

Could anyone please define in simple words but with legal point of view.
Thanks
Londener

[aamir421]

I am eligible to apply for ILR in june 2013. I was caught driving without insurance in Feb 2007. got 6 points and 200 pounds fine. Since 5 years have been passed points have been removed. Then in feb 2011 I received a Caution from police for Texting some one i didnt know. this was based on Malicious communication Act 1988. Its a minor thing. under the new rules on criminality threshold 13 December 2012 non custodial sentence will be considered spent after 24 months. Do u think i will have any problem in my ILR application since 24 months have been passed in Feb 2012.

Do I need to declare these two offences in my application.