Driving offences have long been one of the most frustrating reasons for refusal of applications for indefinite leave to remain. The rule that bit so harshly paragraph 322 (1C) (iv) of the Immigration Rules which made the refusal of ILR mandatory where the applicant had, “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”.
There was a lot of confusion around this rule: fixed penalty notices did not count as they were not reflected on the criminal record, but fines imposed by court triggered refusal of ILR. Challenging a fixed penalty bore the risk of being found guilty by a court of law which would jeopardise an immigration application and lawyers advised their clients not contest penalties to avoid aggravation.
The good news (we all need it!) is that from 1 December a non-custodial sentence, warning, or fine is no longer a mandatory ground for refusal.
Part 9 of the Immigration Rules has been replaced. The new provisions setting out criminality grounds for a mandatory refusal of applications for entry clearance or leave to remain are now in paragraph 9.4.1. It reads:
9.4.1. An application for entry clearance, permission to enter or permission to stay must be refused where the applicant:
(a) has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of 12 months or more; or
(b) is a persistent offender who shows a particular disregard for the law; or
(c) has committed a criminal offence, or offences, which caused serious harm.
However, the good news come with a sting. Non-mandatory grounds for refusal (that is to say, the application may be refused by the decision-maker) set out in paragraph 9.4.3 read:
9.4.3. An application for entry clearance, permission to enter or permission to stay may be refused (where paragraph 9.4.2. and 9.4.4. do not apply) where the applicant:
(a) has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of less than 12 months; or
(b) has been convicted of a criminal offence in the UK or overseas for which they have received a non-custodial sentence, or received an out-of-court disposal that is recorded on their criminal record.
The 24 months amnesty period does not apply and where criminality comes in, the decision-maker has to consider each application on a case-by-case basis. There is less certainty, but there is room for good news and bad news.
Legal advice: drive carefully.
11 responses
Hi
I am quite concern as I have applied for ILR recently and declared that I have 3 points on my driving license it’s for over speeding code was sp30 It not from court I paid the £100 panelty and had three pints on my license. Will it be effect my ILR Applicantion . Please advise I’m worried .
Hi I received 3 points and £100 fine for driving over a speed limit in a 30mph road will this affect my ILR application. I paid the fine and did not let the matter reach to court please advise?
Hello,
I am French
I am currently applying for a skilled worker visa. I am sponsored by current company.
In order to get my visa I need to fill criminal check part.
In 2018, I have been drinking under alcohol, and I lost 6 point in France and a driving license suspension of 3 months.
It is not written on my criminal records. Therefore my question is should I mentionned as it is required that infraction. Or should I keep it to myself since it’s not written on my criminal records.
I don’t want to jeopardize my chance to get my visa.
Could you advise ?
Thanks
This in itself should not lead to refusal of your application, but make sure you don’t provide any false information on the form. Without knowing the questions of the form (and its impossible to remember all of them for all types of visas) it is difficult to give more detailed advice. You may benefit from having a legal representative when making the application.
Hi Helena
Which is better between Zambrano and spouse visa. I got an email from HO today requesting me to decide which of my two outstanding applications (Zambrano and spouse) they should consider.
I am confused, please advise.
Thanks.
Ken
Impossible to say without knowing the circumstances. You may wish to book a consultation and we will be happy to advise you.
Hello .
I have a question if you can help. Recently one of my friend took my car for a drive and I was supervising him . He was on learner lisence however I had not put my L plates on car for which I was stopped by police and given a penalty.
Iam still waiting for post to see the fine / penalty.
Police said it could be fine and up to 6 points .
My question is that my ilr is due in November will this affect my application?
Hi dear,
Was convicted of driving and been given endorsement fines 2 years ago with no points
How does this relate?
Thanks.
You will need legal advice on this.
Hello. I have a criminal record which is I was riding my 125cc moped motorbike without insurance and I get fixed penalty £300 and and six points from my driving licence. is that affects my indefinite leave to remain application?
Yes, it does.