Disclaimer – This information is outdated. Please refer to the following up-to-date guide: Driving offences and Indefinite Leave to Remain (ILR) – the new rules from 1 December 2020
From 13 December 2012 all applications for indefinite leave to remain must not fall for refusal under the general grounds for refusal under the immigration rules which include provisions relating to the applicant’s criminal record.
The new criminality guidance does not permit settlement for persons who, within 24 months prior to the date of the application, have been convicted of or admitted an offence for which they have received a non-custodial sentence, a warning, caution or reprimand which is recorded on their criminal record. When the police decide not to press charges, a caution or a warning may be given to the person who is arrested for a minor offence and admits the wrongdoing. Thus the matter is disposed of out of court and without a formal conviction. Failure to disclose the incident in an immigration application may amount to false representations or deception and may lead to refusal of further leave to remain. Those who intend to settle in the UK have to wait for 24 months after conviction or caution before applying for indefinite leave to remain.
It is important to remember that failure to disclose a conviction or caution in an immigration application has to be disclosed in all future applications – as failure to disclose a previous failure to disclose can also amount to deception or false representations.
Persons convicted of an offence for which they have received a custodial sentence of less than 12 months have to wait for 7 years since the end of the sentence before they can apply for indefinite leave to remain.
Where the custodial sentence is between 12 months and 4 years, the rehabilitation period is 15 years. Persons sentenced to more than four years’ custodial sentence have no right to settle in the UK. Those who have established private and family life in the UK and cannot be required to leave the country have to apply for extension of stay.
When it comes to applying for British nationality, the applicant has to meet the Good Character requirement, which extends to all persons over the age of ten (!).
From 1 October 2012, the concept of conviction becoming “spent” does not apply in the context of assessment of good character. Offences punished by custodial sentences are bound by the same mandatory refusal rules in the context of naturalisation, as in the context of applications for indefinite leave to remain. However, there is no automatic right to naturalisation after the mandatory refusal period has expired. The applicant has to prove that on the balance of probabilities good character requirement is met and the past offence has to be disregarded. UKBA nationality instructions state that caseworkers should not normally disregard any convictions associated with dishonesty, violence, unlawful sexual activity, or drugs, as well as offences which would constitute “recklessness” – such as drink-driving, excessive speeding, driving without insurance or whilst using a mobile phone.
Minor convictions may be disregarded where the applicant is of good character in all other respects.
Fixed penalty notices are not taken into account as there is no admission of guilt. However, proceedings for failure to pay a penalty are not disregarded. Also, numerous fixed penalty notices in the last 12 months may suggest a pattern of behaviour and call into question good character.
How do you prove good character in these circumstances? Well, there is no general rule applicable to all possible scenarios and that is where help from an experienced immigration lawyer will be invaluable!
16 responses
On 2014 I have granted discretionary leave to remain under article 3 human rights but from 2012 to 2014 I was in prison for two years. Since 2014 they gave me 3 times each time 6 months resident permit after, 2 times 2.5 years now can I apply for indefinite leave to remain thanks
I have go to prison 12 moth 2009 for I’m going to live the UK I don’t do any think bid my slseter said I need to wiat 14 years to ably for ctszan chep
I have community order for two years, and MY ILR expires 2021. will I be able to apply in 2021? or is it 4 years combining the 24 months community order and the 24 months ILR application? or is the 24 months counted from the day of conviction {which was in Sept 2018}? I’m so confused please help.
Hi, I have been taken to court for not paying council tax on time, does it going to affect my application Ilr?
how long do i have to wait to apply for settled status as an EU member if i have received a suspend sentence ?
and what about if a received a community order?
thank you
Under EU law you acquire permanent right of residence after exercising Treaty rights for five years. You don’t have to pass the “good character” requirements and community order or suspended sentence does not have any impact. This is a much more relaxed system then settlement under the immigration rules.
what type of searches do immigration make e,.f do they contact police or dvla -how do they verify a conviction as did with my friend when no arrest was made but court summons were used-?
Tunde,
It will not affect your application, it will stay in your record for 5yrs and it will be disregarded.
However, l will advice you do a course in the area where you got your non custodial sentence to prove and demonstrate to UKBA that you now understand and know better and the course have made you a better person.
I hope this help
I got a non custodial sentence in 2005 where i get a 12 month sentence where i do four month in jail now im about to apply for I DLR should i a apply for it are just apply for a three year
I have had a penalty fine in which was taken to court as I am sending the company to court to resolve the issue. Will this stop me from getting my lndefinte leave to remain?
I have got domestic conviction in october 2016,£200 fime which i paid same day and 18 months supervision and 6 months bbr programm which i did successfully.
Am going to apply ilr on oct 2019 is there going to be a problem for ilr and if i get ilr then when i can apply for citizenship??
I got a non custodial sentence 2009 and I want to apply for ilr now.through the 10yrs long residence rule.pls will I be refused?
I was sent to prison for 4years and that was 1999 so can i apply british citizenship
There is no yes or no answer to this question. You would benefit from legal advice before applying and we should be able to tell you if you have a chance of making a successful application when we have had an opportunity to discuss your circumstances with you in more detail. You can book a consultation over the telephone on 020 8930 9503 or send us an email to info@kadmos.org.uk.
My cousin received a caution in June,2010 by her landlord.She applied for 3 extensions prior 2014 which were approved.She applied for ILR,2016 but he application got refused stating deception.I just want to make sure that she mentioned No in Criminal Conviction box as she believed that any caution/warning prior to 24 months is not considered.
Please comment.Is there any hope for getting a fair decision in admin review or Judical review needs to be taken?
Hi There, Is FPN, PNC, PND comes under 24 months rules or it does not count as out of court sentences?