People submitting applications to the UK Border Agency and the Home Office for immigration related matters are under a duty to disclose on their application forms any unspent convictions.
However; most people don’t really know what an unspent conviction is and this causes no end of problems with applications, often resulting in refusal of the applications by the Home Office and UKBA.
Failure to disclose an unspent conviction is very often an automatic reason for refusal of the application. The guidance below is produced to help potential applicants decide whether their conviction is spent.
If you have been convicted of a criminal offence you must declare your unspent convictions on any immigration applications related to the UK. You do not need to declare convictions that are spent.
A conviction becomes spent after a certain period of time has passed (this is called the rehabilitation period).
The length of time it takes for a conviction to become spent will depend on the sentence which was given by the court. 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.
An application for British citizenship is therefore unlikely to ever be successful.
However in exceptional circumstances we have been able to assist clients even in this situation and if this applies to you then you should contact our office on 020 8401 7352 to arrange an appointment to see a specialist immigration solicitor. Also check out our ‘updated’ post here.
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, unless there are compelling compassionate circumstances or you can establish that refusal of your application is a breach of your Human Rights.
For further guidance on the rehabilitation period, please see Guide AN produced by the Home Office and UKBA.
Information on how a conviction becomes spent, and a chart providing examples of rehabilitation periods for various sentences, can be found in the Good Character section of this guide.
Offences for which you may go to court or are awaiting a hearing in court must also be disclosed.
You must provide details of any offence for which you may go to court for or are awaiting a hearing in court. This includes any offences for which you have been arrested and are waiting to hear if you will be formally charged.
If you are living in Scotland you must provide details of any recent civil penalties.
If are arrested or charged with an offence after you have made your application you must let the UKBA and Home Office know.
Applicants should be aware that when applying for naturalisation it is not just serious criminal offences and convictions that will be taken into account.
Convictions for any type of Road Traffic offence including speeding, drink driving, careless driving and driving without insurance or a licence will also need to be disclosed.
Even situations where you have had excessive parking fines will be taken into consideration and can result in refusal of your application.
Additionally you must disclose all civil judgements including but not limited to debts, bankruptcy and charging orders and enquiries will also be made of HMRC and your tax office to ensure that you have no outstanding tax liabilities.
Naturalisation is not as straightforward as many would assume. This is especially so when there are negative or potentially problematic issues relevant to the applicant. Convictions and debts are the tip of the iceberg.
It is wise always to seek professional and independent legal advice from a specialist immigration solicitor regulated by the Solicitors Regulation Authority.
Potential applicants should be wary of less experienced or unregulated individuals and companies claiming to be specialist advisers in immigration law.
To discuss your personal circumstances with a specialist immigration solicitor call 020 8401 7352 to book an appointment today, or contact us.