Non – Custodial Sentences in Immigration Law

BY Author IN Family Law

It will take nobody by surprise when completing a UK visa application that the form requires them to divulge their criminal history. However despite this age old requirement the confusion has to what amounts to a ‘criminal conviction’ within immigration law is not always as clear to an applicant as it ought to be; specifically when it comes to non-custodial sentences.

The recent case of Omenma (Conditional discharge – not a conviction of an offence) [2014] UKUT 314 (IAC) helps to demonstrate this perfectly. Here the appellant seeking leave to remain failed to declare a conditional charge they had received for shop lifting. Initially the Home Office held that this failure to disclose amounted to ‘dishonesty’ on behalf of the appellant and sought to refuse her application. However upon the matter reaching the Upper Tribunal the Home Office subsequently accepted the appellant had not been dishonest and withdrew; a smart move given that the Upper Tribunal then went on to consider the matter regardless and allowed the appeal. Here although the matter that preoccupied the court was the definition of ‘dishonesty’, this brushes on another matter which so often comes up in the application process – what exactly does the Home Office define as a criminal conviction.

Clearly there is no argument that a custodial sentence, one in which an individual is given a prison sentence, falls within the definition of a criminal conviction. However confusion often arises when an individual has been given a non-custodial sentence and the effect this will have on their immigration application.

The immigration law sets out very clear time frames in which an individual’s non-custodial sentence will impact their application.

For those applying for entry clearance or leave to enter the rules state they should ‘normally be refused if’:

within the 12 months prior to the date on which the application is decided, the person has been convicted of or admitted an offence for which they received a non-custodial sentence or other out of court disposal that is recorded on their criminal record;

Whilst those applying for leave to remain or indefinite leave to remain face refusal if they fall under the following paragraph:

[the applicant has], within the 24 months prior to the date on which the application is decided, 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

It therefore seems pretty clear how exactly a non-custodial sentence will impact someone’s UK application. However it does little to explain what is considered as a non-custodial sentence, other than it is something that appears on the individual’s criminal record.

A concerned applicant would therefore have to look elsewhere for guidance, their search would hopefully take them to the Modernised Guidance.

Here the guidance sets our examples of what is considered a non-custodial sentence. The guidance is split into general grounds, applications for entry clearance, applications for leave to remain/indefinite leave to remain and refusal wording. The most important of these four sections is the first, as this defines what is considered as a non-custodial sentence.

This section of the guidance notably lists what is considered as a non-custodial sentence. The list includes:

• Fines
• Fixed penalty notices
• Cautions, warnings and reprimands
• Absolute and conditional discharges
• Binding overs
• Non-custodial sentences and orders
• Disqualifications from driving

It then defines each one accordingly and it is here that the individual will notice a pattern. The guidance, much like the immigration rules, draws a clear distinction between those ‘sentences’ that form part of a person’s criminal record and those that do not.

For example fines form part of a criminal record and therefore fall within the consideration timeframes outlined in the immigration rules above. On the other hand fixed penalty notices do not and are therefore not to be considered. It would therefore seem from a first glance that only those that from part of a person’s criminal record will ‘count as a non-custodial sentence for immigration purposes’, however it is not always as simple as that.

Instead for those who have received numerous non-custodial sentences, that may or may not have not formed part of their criminal record, may still find themselves facing refusal.

The guidance is very clear that some offenders, notably repeat offenders, must also be considered under the following categories:

a)      Persistent Offender;

b)      Character, conduct or association

This is pretty self-explanatory, the former allows the Home Office to refuse an application based upon the nature, extent, seriousness and frequency of the applicant’s offences. Whilst the latter is a little more open ended and allows the Home Office to refuse an application based upon the applicant’s involvement with groups, gangs or evading immigration control. This can be applied even in the absence of a criminal sentence and both can be applied to deny those with ASBOs. It is worth noting however that should the Home Office wish to refuse under this category they must give very clear information as the reason behind their decision.

It would seem therefore that if a certain ‘sentence’ does not form part of your criminal record, it is not always something in which you have to declare. However given the Home Office’s non-tolerant attitude towards failure to disclose such information, it would be advisable to be overly honest.

New visa prospects are introduced for international skilled workers in 2014

BY Author IN Family Law

 

There have been some important developments in the UK immigration law scene introduced by David Cameron this March one of which will come very helpful to opportunity seeking international workers that specialize in IT technologies and digital innovations- it is called the ‘tech visa’.

The ‘tech Visa’ is not a new type of visa; it qualifies under the Tier 1 (Exceptional Talent) visa. An applicant for a ‘tech visa’ must be internationally recognized, regarded as an exceptional talent in his field and also must be endorsed by Tech City which is the fifth Designated Competent Bodies (DCBs) newly introduced by the Prime Minister. Its main purpose is to overlook and support the activity of technology clusters in London and stimulate economic growth and job opportunities in the sphere of digital innovations and IT systems. The other four DCBs that issue an endorsement are:

• The Royal Society
• Arts Council England
• The British Academy
• The Royal Academy of Engineering

‘Tech Visa’ has been introduced with a prospect of uniting and stabilizing the UK economy in the field of technologies and supporting the technology clusters that are currently being formed in London especially the technological area around Shoreditch. The field of technologies and innovative digital business has been experiencing a significant growth during the past 3 years and the Chief Executive of Tech City Joanna Shields believes it is Britain’s route out of its economic difficulties. There has been £15,5 million injected by the government into this area in order to further the growth and development of this field not only in London but across the whole country, which presents a massive potential not only for new investment but for skilled professionals as well.

The ‘tech visa’ offers a symbiotic relationship between the area of business that is in need of a fresh outlook and expertise and international skilled workers that have a great opportunity of realizing their full professional potential without the need of finding themselves a sponsor that would otherwise be required under the Tier 2 (General) visa. Such a goal can only be achieved if the flow of international work force is facilitated and the connection between UK employers and international professionals is strengthened on the immigration procedure level, as this is the starting point of any possible cooperation between UK businesses and their potential overseas employees. Joanna Shields said that hiring has become a problem, and Westkin strongly believes that the introduction of ‘tech visas’ is a positive step on the way to solving this problem.

The procedure of application for a ‘tech visa’ is the same as for all other applicants for a Tier 1(Exceptional Talent) visa and it contains two stages. In the first stage you apply to the Home Office for an endorsement by a DCB and in the second stage you apply for the visa itself. After an endorsement has been issued an applicant has up to 3 months to apply for the visa, the processing time is usually 3 weeks and under a ‘tech visa’ you can stay for 3 years and 4 months if applying from outside the UK.

Immigration lawyers at Westkin can provide a comprehensive advice and assistance on how to apply and achieve a successful result in the whole application process, so do not hesitate to contact us.