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.