Criminal convictions include driving offences such as drink driving and driving without insurance…
THE UK Border Agency has set a criminal conviction threshold for settlement to bring it more in line with that for citizenship (naturalisation) applicants. Starting on April 6, 2011, 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 in the UK, would be expected to leave.
The following requirement has been inserted into all the settlement rules:
(v) the applicant does not have one or more unspent convictions within the meaning of the rehabilitation of offenders act 1974.
This unwelcome addition to the rules closes an escape route from domestic violence for any woman with any level of criminal conviction. Meanwhile, a woman with a criminal conviction still in an abusive relationship might succeed on human rights grounds and therefore has an incentive to remain in that abusive relationship.
The catch-all nature of the criminal convictions exclusion from settlement for all or most categories of settlement, including family settlement, is an extreme step by the current government. In a spouse case, it means that a criminal conviction of any kind, no matter how relatively trivial, will either terminate the relationship by forcing the migrant spouse to depart these shores, or will force the British or settled spouse to leave their own country to continue the relationship. The exclusion also ignores the effect on any children of the relationship.
Cases on human rights grounds are likely to succeed. It is very rare for human rights cases to be allowed by the UK Border Agency but those with the ability to take the cases further and who can employ a good solicitor might well win on appeal or an application for judicial review. This appears to be another way that the current government is marginalising those without access to the legal process, at a time when proposals are being made to stop granting legal aid in cases such as these.
What is a spent 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. A conviction becomes spent after a certain period of time has passed (we call this the rehabilitation period).
The length of time it takes for a conviction to become spent will depend on your sentence. It starts from the date on which you are convicted. The period may be shorter if you were aged under 18 at the time of your conviction.
If you have been sentenced to more than 30 months in prison for a single offence, this can never become spent. Your application for citizenship or settlement is, therefore, unlikely to be successful.
If you have been convicted of a criminal offence but the rehabilitation period has passed by the time you make your application, you do not need to provide details of the conviction on your application form. If you were convicted of a further offence during the rehabilitation period of your original conviction, the rehabilitation period for your original conviction may be extended.
If you have been convicted of a criminal offence and the spent period has not passed, you must include details of the conviction on your application form. If the conviction is unspent at the time of your application, it is unlikely that your application will be successful.
Criminal convictions include driving offences such as drink driving and driving without insurance.
CLICK HERE to see a table of criminal convictions and length of habilitation.
RBM Solicitor has been well placed to assist many individuals who have criminal convictions. Our proven track record in dealing with human rights cases will be invaluable in times when the immigration rules are being tightened.