ILR & Drink Driving

Afco · Post by **Afco** » Fri Sep 21, 2007 11:43 pm

Just seeking your views on this scenerion. Got a conviction for drink driving in July 2007 and was disqualified from driving for 12 months and fined 200 pounds. I am on a work permit and I have a permament job. My wife and kid got their visa through me and my wife is working as a Nurse but has not qualified to apply for ILR independently as she has had the visa for less than five years and she does not have a work permit.

I qualify to apply for ILR next month. Will the conviction affect my application? Is there anyway I can get the ILR if I get good references from people that I work with in my profession and in the community? Iam thinking of getting a letter from my boss to show that my job is continuing and that they still need me.

I am renting at the moment. Would buying a house before I apply help to show that I have good ties to the UK?

Any tips would be really appreciated.

Afco

munhumutapa · Post by **munhumutapa** » Sat Sep 22, 2007 12:52 am

Shouldn't be a problem really if you were not given a prison sentence exceeding 6 months.

Afco · Post by **Afco** » Sat Sep 22, 2007 11:08 am

I have seen from the following link that it is considered by the Home Office not to be minor offence that can be disregarded for the purposes of naturalisation and therefore one needs a two year clear period without offending from the date of the last conviction (see the last page). But this is in respect of citizenship/naturalisation. Just wondering whether the same or a different criteria would be used for Indefinite Leave to Remain (ILR).

I can delay the application a bit, but, in 2008, I will be compelled to either apply for the renewal of the work permit or ILR, as my work permit expires in October 2008.

http://www.ind.homeoffice.gov.uk/docume ... iew=Binary

Afco

Afco · Post by **Afco** » Sat Sep 22, 2007 12:08 pm

I meant "CANNOT be disregarded for the purposes of naturalisation and therefore one needs a two year clear period without offending to be naturalised. Would this rule also apply to those applying for ILR or is the Home Office likely to be more lenient."

avjones · Post by **avjones** » Sat Sep 22, 2007 6:22 pm

Under the Rehabilitation of Offenders Act 1971, as you were fined, your conivction will be spent after 5 years if you are not convicted of any other offence.

One of the general grounds for refusal of leave to enter or remain is in Rule 322 of the Immigration Rules. This Rule states that:

(5) the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his character, conduct or associations or the fact that he represents a threat to national security;

322(5) comes under the headline of "Grounds on which an application to vary leave to enter or remain in the United Kingdom should normally be refused"

The guidelines state:

Paragraph 322(5) of the Immigration Rules states as a ground on which an application to vary leave to enter or remain should normally be refused, the undesirability of permitting the person concerned to remain in the United Kingdom in the light of their character, conduct or associations or the fact that they represent a threat to national security.

Before a person may be refused leave to remain on grounds of character, conduct or associations on the basis of a criminal conviction, the caseworker must determine that the offender is not a rehabilitated person as defined in the Act. To this end the caseworker must know:

* The nature of the offence committed;
* The date of conviction;
* The nature of the sentence imposed, and whether that sentence has been served, undergone or complied with.

Where it is established that a person is not a rehabilitated person consideration should be given to refusal of leave under paragraph 322(5) on grounds of conduct, character or associations.

Where it is established that a person has become a rehabilitated person and their conviction spent they may not be refused leave under paragraph 322(5) on grounds of conduct, character or associations solely on the basis of that conviction.

So the drink-driving conviction, unspent as it is, is a matter which can have an impact both on an application for ILR or an application for further leave to remain on the basis of a further work permit.

Afco · Post by **Afco** » Sat Sep 22, 2007 9:18 pm

Amanda,

Many thanks for your views. Paragraph 322 which you have mentioned seems to refer to those who are applying to VARY their leave to enter or remain.

There is another specific paragraph for indefinite leave to remain for work permit holders (paragraph 134). I thought this is the paragraph that would apply to me and it does not mention anything to do with character, conduct, conviction etc. Please see it below and advise further:

134. Indefinite leave to remain may be granted, on application, to a person admitted as a work permit holder provided:

(i) he has spent a continuous period of 5 years in the United Kingdom in this capacity; and

(ii) he has met the requirements of paragraph 128 (i) to (v) throughout the 5 year period; and

(iii) he is still required for the employment in question, as certified by his employer; and

(iv) he has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application.

Refusal of indefinite leave to remain for a work permit holder
135. Indefinite leave to remain in the United Kingdom for a work permit holder is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 134 is met.

http://www.ind.homeoffice.gov.uk/lawand ... ules/part5

Afco · Post by **Afco** » Sat Sep 22, 2007 9:42 pm

Amanda,

If paragraph 322 is invoked in my case, would it be better for me to serve the driving disqualifation first before applying for ILR. I can complete the disqualifaction by April 2008 if I undertake a drink rehabilitation course by January. This will help the disqualification to be spent, but I will still have the unspent fine. Would this help? What about other documentary evidence of good character from employer and people in the community, would this help?

Afco

Afco · Post by **Afco** » Sat Sep 22, 2007 10:20 pm

Also wondering whether extension of leave to remain under the work permit amounts to varying the leave to remain. If it is not varying leave to remain, then it seems paragraph 322 would not apply to this category. Perhaps changing from leave to remain under a work permit to indefinite leave amounts to varying.

avjones · Post by **avjones** » Sat Sep 22, 2007 11:36 pm

Afco wrote:Amanda,

Many thanks for your views. Paragraph 322 which you have mentioned seems to refer to those who are applying to VARY their leave to enter or remain.

There is another specific paragraph for indefinite leave to remain for work permit holders (paragraph 134). I thought this is the paragraph that would apply to me and it does not mention anything to do with character, conduct, conviction etc. Please see it below and advise further:

Rule 134 applies to the specific conditions required for ILR for work permit holders.

Rule 322 is a general paragraph, which applies to all applications to vary leave to enter or remain. An application for ILR is an application to vary.

avjones · Post by **avjones** » Sat Sep 22, 2007 11:38 pm

Afco wrote:If paragraph 322 is invoked in my case, would it be better for me to serve the driving disqualifation first before applying for ILR.

The conviction won't be spent until 5 years after conviction, so I don't think that it would make much difference whether or not the disqualification period was over or not.

Afco wrote:What about other documentary evidence of good character from employer and people in the community, would this help?

Can't hurt. Rule 322 sets out the circumstances in which leave would normally be refused. You would need to rebut this presumption.

Were their strong mitigating circumstances in relation to the drink-driving?

Dawie · Post by **Dawie** » Mon Sep 24, 2007 10:20 am

avjones wrote:Were their strong mitigating circumstances in relation to the drink-driving?

To be fair, there is no excuse for drink driving.

avjones · Post by **avjones** » Mon Sep 24, 2007 4:12 pm

Dawie wrote:
avjones wrote:Were their strong mitigating circumstances in relation to the drink-driving?
To be fair, there is no excuse for drink driving.

There can be - if someone is slightly over hte limit, no-one else is available to drive, and someone needs to be taken to hospital. Or if a drink is spiked, and the person doesn't know he's over the limit.

Docterror · Post by **Docterror** » Mon Sep 24, 2007 5:10 pm

There can be - if someone is slightly over hte limit, no-one else is available to drive, and someone needs to be taken to hospital.

Get a cab or an ambulance! Plus, these are not the usual conditions that normally is associated with a drunk driver. What next? ... if no one is available to drive and you are being chased by paparazzi?. Oh Wait!...

Dawie · Post by **Dawie** » Mon Sep 24, 2007 5:17 pm

avjones wrote:
Dawie wrote:
avjones wrote:Were their strong mitigating circumstances in relation to the drink-driving?
To be fair, there is no excuse for drink driving.
There can be - if someone is slightly over hte limit, no-one else is available to drive, and someone needs to be taken to hospital. Or if a drink is spiked, and the person doesn't know he's over the limit.

Those are not excuses!

If you are slightly over the limit, you are still over the limit. Tough luck!

If no one else is available to drive and someone needs to be taken to the hospital then, as Docterror says, call a cab or call an ambulance.

Spiked drink? If your drink was spiked you wouldn't be able to walk, let alone drive.

Not knowing you're over the limit is not an excuse for drink driving.

avjones · Post by **avjones** » Mon Sep 24, 2007 7:11 pm

Dawie wrote: If no one else is available to drive and someone needs to be taken to the hospital then, as Docterror says, call a cab or call an ambulance.

Spiked drink? If your drink was spiked you wouldn't be able to walk, let alone drive.

Not knowing you're over the limit is not an excuse for drink driving.

There might well be circumstances where a decision to drive is the right one, if someone is bleeding to death, etc. That's why I asked if there were any strong mitigating features.

If a non-alcoholic drink is spiked with alcohol, that wouldn't prevent someone from walking!

Not knowing you are over the limit is indeed neither an excuse nor a defence for drink-driving, but there is a special plea of "guilty but special reasons" which includes the examples I gave.

VictoriaS · Post by **VictoriaS** » Tue Sep 25, 2007 4:31 pm

In my experience, a drink driving conviction which did not result in a custodial sentence is not likely to result in refusal of ILR - assuming that this is your only offence. It will probably affect a citizenship application though.

As well as a 'spent' time as per the Rehabilitation of Offenders Act, the Home Office also have guidance for a 'clear period' under Chapter 18, Annexe D (ii) of the Nationality Instructions, which may be useful to look at.

Victoria

Afco · Post by **Afco** » Tue Sep 25, 2007 9:43 pm

Many thanks for all your insights. I am a first time offender. Never ever committed any other offence and I am working as a higher education professional at a University plus utilising my skills to help many community projects in my locality. Could a highlight of all these help?

I could give it a go, Victoria, but would it be advisable to wait for the disqualification to become spent - although I will still have an unspent time for the fine. Just assuming it might be better to have one unspent sentence rather than two.

Does extending leave to remain for work permit purposes amount to varying of status?

VictoriaS · Post by **VictoriaS** » Wed Sep 26, 2007 3:57 pm

It will take a good few years for the conviction to be spent. If I were you, I'd chance it. And if you can show that you are a responsible and decent member of the community then yes, I think it will help.

Victoria

Afco · Post by **Afco** » Tue May 13, 2008 10:54 pm

Just wanted to thank you all for all your helpful tips and comments regarding my query on drink driving and absences from the UK for more than 9 months.

I submitted my ILR on 14 April 2008 and I have just received the passport with an endorsed ILR stamp.

Very good references from the employer and people in the community where I often do voluntary work helped a great deal. A similar letter from my employer genuinely explained that all my absences from the UK were work related and they were therefore disregarded.

I am really glad that I did all this by myself without using any lawyer or immigration adviser and saved so much money in the process.

Thanks for your tips once again.

paulp · Post by **paulp** » Wed May 14, 2008 8:30 am

Afco wrote:I am really glad that I did all this by myself without using any lawyer or immigration adviser and saved so much money in the process.

Thanks for your tips once again.

Congrats!!! It's worth pointing out that Amanda is an immigration lawyer and VictoriaS is an immigration consultant.

republique · Post by **republique** » Wed May 14, 2008 10:00 am

Afco wrote:Just wanted to thank you all for all your helpful tips and comments regarding my query on drink driving and absences from the UK for more than 9 months.

I submitted my ILR on 14 April 2008 and I have just received the passport with an endorsed ILR stamp.

Very good references from the employer and people in the community where I often do voluntary work helped a great deal. A similar letter from my employer genuinely explained that all my absences from the UK were work related and they were therefore disregarded.

I am really glad that I did all this by myself without using any lawyer or immigration adviser and saved so much money in the process.

Thanks for your tips once again.

So I guess you had an excess of absences as well?
Boy do you live on the edge.
Yes you should thank the Victoria and Amanda as well as the board

Afco · Post by **Afco** » Thu May 15, 2008 9:55 pm

Paulp,

Sure they are. I made the point on a positive rather than negative note and I, of course, appreciate their tips a great deal, as they saved me the touble and cost of having to file my application through a consultant/lawyer.

Nice day.

kariarxy · Post by **kariarxy** » Fri May 16, 2008 11:21 am

Afco wrote:Just wanted to thank you all for all your helpful tips and comments regarding my query on drink driving and absences from the UK for more than 9 months.

I submitted my ILR on 14 April 2008 and I have just received the passport with an endorsed ILR stamp.

Very good references from the employer and people in the community where I often do voluntary work helped a great deal. A similar letter from my employer genuinely explained that all my absences from the UK were work related and they were therefore disregarded.

I am really glad that I did all this by myself without using any lawyer or immigration adviser and saved so much money in the process.

Thanks for your tips once again.

congratulations on successful ILR! From your posts, I know you have 9 months absences and some are work related.
Do you mind telling me how many days are business related? Do you mind sharing the format of the company letter with us? I am in the similar situation as you, 8 months absences and 2.5 months are business trips.

Afco · Post by **Afco** » Fri May 16, 2008 10:23 pm

Kariarxy,

Thanks - all my 9 months absences were work related and I requested them to disregard all of them (including paid annual leave, compassionate leave, training leave, research leave etc).

It was just a straightforward letter from my employer setting out all the dates that I have been out of the UK in the last five years and saying that these absences were necessary and work related.

I then referred to this letter in my own covering letter and asked the Home Office to disregard the absences.

Hope this helps.

kariarxy · Post by **kariarxy** » Fri May 16, 2008 11:15 pm

Afco wrote:Kariarxy,

Thanks - all my 9 months absences were work related and I requested them to disregard all of them (including paid annual leave, compassionate leave, training leave, research leave etc).

It was just a straightforward letter from my employer setting out all the dates that I have been out of the UK in the last five years and saying that these absences were necessary and work related.

I then referred to this letter in my own covering letter and asked the Home Office to disregard the absences.

Hope this helps.

Oh, thanks, but can paid anuual leave be treated as work related? All my other absences are paid annual leave.

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ILR & Drink Driving