Hi guys,

Can you please advise if you have to disclose a conditional discharge as a conviction for immigration purposes?

The question is whether you have a conviction (not a criminal record, which you likely do) and it is arguably NOT a conviction. Different appeals for immigration or employment purposes have been won by appellants not having disclosed this as a conviction. Please advise.

Hi there, I have moved your post to its own thread so people can help advise you.

As this is a immigration purpose, I have moved your thread to a forum where you may get the right advice. If ytou get no feedback in 24 hours feel free to use the report option at the bottom of your post. (Triangle with ! in it)

Please can you help users by explaining what the conditional discharge is.

Regards

SS

Hi guys,

 

Can you please advise if you have to disclose a conditional discharge as a conviction for immigration purposes?

The question is whether you have a conviction (not a criminal record, which you likely do) and it is arguably NOT a conviction. Different appeals for immigration or employment purposes have been won by appellants not having disclosed this as a conviction. Please advise.

I'm intrigued as to how they got a conditional discharge without either:

Pleading guilty, or

Pleading "not guilty" but being found guilty.

On what basis are you arguing that isn't a conviction?

At what stage of the immigration process?

Visa? (If so, which tier)

ILTR?

Naturalisation?

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/406368/Chapter_18_Annex_D_v02.pdf

Has, on p.30 (when referring to 'rehab' periods) a period of at least 1 year listed for conditional discharge

Was the offence one of "serious harm"? : where a longer period can be applied by the UKBA decision maker......

It may be worth disclosing it and allowing them to decide (appealing if necessary), rather than not disclosing it where (if they concluded an attempt to deceive) it could lead to a protracted period of exclusion.

It was issued on the basis of pleading not guilty but being found guilty. The question on the immigration form is not about guilt. They ask if you have a conviction or not. Full stop.

ILR.

A conditional discharge by definition is not a conviction, however you get a criminal record.

Please refer to this case for more. https://tribunalsdecisions.service.gov.uk/utiac/2014-ukut-314

It was issued on the basis of pleading not guilty but being found guilty. The question on the immigration form is not about guilt. They ask if you have a conviction or not. Full stop.

 

ILR.

 

A conditional discharge by definition is not a conviction, however you get a criminal record.

 

Please refer to this case for more. https://tribunalsdecisions.service.gov.uk/utiac/2014-ukut-314

Referring to that case they cite

Powers of Criminal Courts (Sentencing) Act 2000

http://www.legislation.gov.uk/ukpga/2000/6/part/II

ABSOLUTE AND CONDITIONAL DISCHARGE

 

12 Absolute and conditional discharge.

 

(1)Where a court by or before which a person is convicted of an offence (not being an offence the sentence for which is fixed by law or falls to be imposed under section 109(2), 110(2) or 111(2) below) is of the opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment, the court may make an order either—

(a)discharging him absolutely; or

(b)if the court thinks fit, discharging him subject to the condition that he commits no offence during such period, not exceeding three years from the date of the order, as may be specified in the order.

"Where a court by or before which a person is convicted of an offence"

Initially it would not be hard to argue that for a conditional discharge to be ordered, there must have been a conviction for an offence - the statute says so.

However, it then goes on :

"(1) Subject to subsection (2) below, a conviction of an offence for which an order is made under section 12 above discharging the offender absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under section 13 above."

Are they still within the period of the conditionsl discharge?

There may be an effect if the conditional discharge conditions might be broken and the discharge revoked ....

Just as it states that:

(1) Subject to subsection (2) below, a conviction of an offence for which an order is made under section 12 above discharging the offender absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under section 13 above."

There are several arguments on that thread, ultimately coming to the conclusion that a discharge is not a conviction and granting the appellant leave to remain. This is noted in the Case title and explained in the end.

Just as it states that:

 

(1) Subject to subsection (2) below, a conviction of an offence for which an order is made under section 12 above discharging the offender absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under section 13 above."

 

 

 

There are several arguments on that thread, ultimately coming to the conclusion that a discharge is not a conviction and granting the appellant leave to remain. This is noted in the Case title and explained in the end.

I'd just edited my post to reflect that

So, if you knew the answer, why pose the question?

Depending on if the applicant is still within the period of the conditionsl discharge (where it could be reactivated), one might distinguish such from the appellant noted above.

is it related to this thread?

http://www.consumeractiongroup.co.uk/forum/showthread.php?437382-Fraud-by-false-rep-need-guidance&p=4663018#post4663018

I'd just edited my post to reflect that

 

So, if you knew the answer, why pose the question?

 

Depending on if the applicant is still within the period of the conditionsl discharge (where it could be reactivated), oneigjt distinguish such from the appellant noted above.

Just wondering what people's views are on the case and how they're bound to argue that. I am still unclear in my head regardless of the successful appeal I posted whether it would be honest to answer NO to the question. :/

is it related to this thread?

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?437382-Fraud-by-false-rep-need-guidance&p=4663018#post4663018

Yes!

is it related to this thread?

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?437382-Fraud-by-false-rep-need-guidance&p=4663018#post4663018

If so, the conditional discharge may well still be "active".

Was it for fraud by false representation?? They would be hard pushed to describe such (for £30!) as falling into the "really serious harm" category....

How long was the conditional discharge for (it can be for up to 3 years)

What if they argue that the appellant in the case you cited knew the conditional discharge couldn't be reactivated because they were outside of its period, and an offender still within the period of the conditional discharge doesn't have that certainty.

Why not disclose it an any application, noting that strictly speaking you don't have to do so, (citing the upper tribunal case) and that you believe a decision maker should disregard it. However, you want to give them no reason to believe you are attempting to conceal anything, hence you are disclosing it.

Would that not be the best of both worlds, if you can ensure they must disregard the conditional discharge?

Yes!

Last post to that thread (until today) was December 2014.

So, your case was decided I'm the last 4 months?

Because the more you disclose, the more it confuses them so I'd rather not, unless I have to.

It is for £30 that ruined my life even though I maintained my innocence until the end but it is for dishonesty and they don't take lightly to that.

Furthermore, they have mandatory grounds for refusal now and they won't think twice to weigh the severity of the crime but refuse straightaway, regardless.

The appellant in question had applied BEFORE their conditional discharge was spent (applied on 5 Aug 2012, spent on 29 Oct 2013). Of course the appeal seems to have taken ages (May 2014) so eventually I think their conviction became spent too! That's not why they won though, their sol seemed to have successfully argued that they didn't have a conviction to answer for. Mine won't be spent for 2 years either.

I think I might disclose it in a cover letter after ticking NO and explaining the details of my offence and the Upper Tribunal decision so at least I won't be done for Deception.

I could always get Further Leave to remain (not Indefinite) for which the the conviction isn't a bar, but I just am so mad and frustrated with how they dragged out my case that paying 100 times the £30 in costs wasn't sufficient but now the rest of my life will have to be ruined by said conviction too!

Last post to that thread (until today) was December 2014.

So, your case was decided I'm the last 4 months?

Only just.

I have now added a bit of info on the original thread too.

I am immensely grateful for your help BazzaS, the support of the whole forum but especially YOUR advice always correct and to the point has been of great help.

I am still in a living hell as my life's been turned upside down but will have to learn to live with it. Thank You for everything.

as you say speranza, was obiter according to archbold, to be decided on 'another day'.

but, according to the govt, a cond discharge goes on a persons 'criminal record'.

a cond discharge goes on a persons 'criminal record'.

Hi guys,

 

The question is whether you have a conviction (not a criminal record, which you likely do) and it is arguably NOT a conviction.

Hi guys,

 

The question is whether you have a conviction (not a criminal record, which you likely do) and it is arguably NOT a conviction.

 

yes, it is arguable, as said in that case you posted. that was decided re dishonesty ie on reading of the statute wasnt dishonest in stating no conviction. whether it is/shld be a 'conviction' re such 'other areas' is 'for another day'.

just saying what the govt says, and prob wld be a matter of statutory interpretation, and semantics either way as archbold suggest; 'found guilty of' cf. 'convicted'

I have been following this and I am wondering since you got a conditional discharge Speranza I hope you will appeal? Sounds to me like you have been a VICTIM in all of this and not a perpertrator. I go with a previous poster that you may have been sold a counterfeit product in the first place?

I am in the process of appealing right now. I have been through hell and back but there's some light at the end of the tunnel.

Many people said it's not wroth the cost for such a 'light' sentence but I'd rather die than have my name tarnished for something they had no evidence against me but the item which THEY sent me.

The crown offered no evidence of order fulfilment from the warehouse or garment history (if it may have been purchased/ returned before etc) as I had asked for disclosure, but my barrister was beyond incompetent and decided to go for lunch after 1 hour and the jury were instructed to convict.

The process was unfair. Fingers crossed it won't take too much time and money to appeal. Thanks everyone for the support.

it is something to discuss.

what i meant re 'another day', is that the tribunal on the day said that and didnt consider that particular issue.

Keep us updated speranza, as I think that appealing is the best way forward

@Ford, I think that the phrase is "another day, another way" lol