Will a criminal record affect the immigration process to the UK?

[Dino_Choi]

My wife was caught using a student oyster (from my son) instead of her one.

 

TFL will prosecute her, and once she pleads guilty,

 

she will get a criminal record.

 

Will this affect our immigration process to the UK?

 

I am using the tier 1 (investor) visa to stay in UK,

 

this is my first year staying here.

[Guest]

and a hello to you to

[BazzaS]

My wife was caught using a student oyster (from my son) instead of her one. TFL will prosecute her, and once she pleads guilty, she will get a criminal record. Will this affect our immigration process to the UK? I am using the tier 1 (investor) visa to stay in UK, this is my first year staying here.

 

Try and get TfL to agree an administrative settlement (out of court ) which will not be a conviction, nor show on a criminal record check.

 

Whatever she hoped to save by using the discounted card she was not entitled to : if TfL are generous enough to allow her an out of court settlement - it'll likely be costly.

They don't have to agree an out of court settlement where it may be costly in a different way - ineligibility for 2 years.

 

If she pleads or is found guilty, or accepts a caution, she will be ineligible for an application for leave to remain, variation of leave to enter or remain or, where appropriate, the curtailment of leave, for 2 years minimum.

A conviction where she would be liable for a prison sentence would lead to a longer exclusion period, but a Byelaw 18 conviction can't carry a prison sentence, nor can a FIRST conviction under S5 of the RRA 1889.

 

Home Office : Immigration Rules, Part 9 - Paragraph 322 1C.

Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom are to be refused:

 

1C (iv) they have, 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.

 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/302674/20140410_Immigration_Rules_-_Part_9_MASTER.pdf

 

Edited to add: the above is for the main applicant, but Appendix FM deals with family members, and under "indefinate leave to remain" there is:

 

S-ILR.1.6. 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 received a non-custodial sentence or other out of court disposal that is recorded on their criminal record.

 

 

D-ILRP.1.2. If the applicant does not meet the requirements for indefinite leave to remain as a partner only for one or both of the following reasons-

(a) paragraph S-ILR.1.5. or S-ILR.1.6. applies;

(b) the applicant has not demonstrated sufficient knowledge of the English language or about life in the United Kingdom in accordance with Appendix KoLL,

the applicant will be granted further limited leave to remain as a partner for a period not exceeding 30 months, and subject to a condition of no recourse to public funds.

 

So , she cannot succeed on applying for ILTR, but would be granted a further period of limited LTR, based on a conviction (not involving a custodial sentence)

[BazzaS]

My wife was caught using a student oyster (from my son) instead of her one. TFL will prosecute her, and once she pleads guilty, she will get a criminal record. Will this affect our immigration process to the UK? I am using the tier 1 (investor) visa to stay in UK, this is my first year staying here.

 

Was this on the railways? (Overground or underground)?

 

Have they written to her? If so, have they said what they might intend to summons her for?

 

Byelaw 18 (not holding a valid ticket) is viewed as less serious than S5 Regulation of Railways Act 1889, but is "strict liability" : if she didn't have a valid ticket it doesn't matter if she intended that or not : the onus is on her to have a valid ticket.

 

S5 RRA 1889 requires intent : if she didn't intend to avoid her full fare she might then try to plead "not guilty".

TfL can decide not to use S5 RRA 1889, and use Bylaw 18 instead.

 

What happened? What did she say when questioned?

[Dino_Choi]

Try and get TfL to agree an administrative settlement (out of court ) which will not be a conviction, nor show on a criminal record check.

 

Whatever she hoped to save by using the discounted card she was not entitled to : if TfL are generous enough to allow her an out of court settlement - it'll likely be costly.

They don't have to agree an out of court settlement where it may be costly in a different way - ineligibility for 2 years.

 

If she pleads or is found guilty, or accepts a caution, she will be ineligible for an application for leave to remain, variation of leave to enter or remain or, where appropriate, the curtailment of leave, for 2 years minimum.

 

Thank you for your reply.

 

She already received a letter from TFL saying that they are going to prosecute her, and the FAW Would it be too late to try and settle out of court with TFL?

 

Her VISA lasts for 3 years and need to extend 2 more years after that. She needs to stay in the UK for 5 years to meet the requirements of immigration. Do you think she will still be eligible to apply the extended VISA in 3 years?

 

Thanks a lot for your replies.

[Dino_Choi]

Was this on the railways? (Overground or underground)?

 

Have they written to her? If so, have they said what they might intend to summons her for?

 

Byelaw 18 (not holding a valid ticket) is viewed as less serious than S5 Regulation of Railways Act 1889, but is "strict liability" : if she didn't have a valid ticket it doesn't matter if she intended that or not : the onus is on her to have a valid ticket.

 

S5 RRA 1889 requires intent : if she didn't intend to avoid her full fare she might then try to plead "not guilty".

TfL can decide not to use S5 RRA 1889, and use Bylaw 18 instead.

 

What happened? What did she say when questioned?

 

She was caught on the bus. She didn't realise she was using our son's oyster card (Student Oyster) when she got on the bus. When the inspector came to check, she opened up the card folder and found out that's not the one she usually uses. She found that her one was in another pocket. She explained to the inspector and showed it to him but he didn't accept it.

 

After a week, she got the letter from TFL. She reply them and explained the situation by letter but it seems as though the explanation wasn't accepted. Then we got the letter from court yesterday.

 

A final question, do you think my son can apply for another student oyster again since the inspector took his card?

 

Thank you.

[BazzaS]

 

She already received a letter from TFL saying that they are going to prosecute her, and the FAW

Would it be too late to try and settle out of court with TFL?.

 

You can ask for an administrative settlement up to "the courthouse steps" .... but TfL aren't obliged to agree / offer one.

 

What is "FAW"?

 

Did her letter explain how the mistake had been made? Offer an unqualified apology? Ensure TfL knew that she would never do so again ? Offer their administrative costs and any fare due ? Avoid any blame towards TfL staff?

 

Her VISA lasts for 3 years and need to extend 2 more years after that. She needs to stay in the UK for 5 years to meet the requirements of immigration. Do you think she will still be eligible to apply the extended VISA in 3 years?

 

Thanks a lot for your replies.

 

After 2 years a conviction (with no prison sentence a possibility) shouldn't count against her BUT she MUST declare it!

Declaring it and them deciding it is unimportant won't matter.

NOT declaring it could lead to an absolute refusal to allow her to remain on account of "making a false statement"

[Guest]

What is "FAW"?

 

 

Football Association of Wales

[BazzaS]

Football Association of Wales

 

I know it as "First Aid at Work" (the HSE's required first aid certificate for businesses over a certain size)

 

Neither are a very good fit for the OP's context .....

Hence my asking.

[Guest]

I know it as "First Aid at Work" (the HSE's required first aid certificate for businesses over a certain size)

 

Neither are a very good fit for the OP's context .....

..

 

 

hi.

i know mine doesnt fit, was a jesty post!

 

maybe is one of those 'urban' acronyms?

[BazzaS]

hi.

i know mine doesnt fit, was a jesty post!

 

maybe is one of those 'urban' acronyms?

 

More likely an abbreviation than an acronym ..... but we'll see if / when the OP lets us know!

[rambo]

Another 'did not know I used the wrong pass' thread.

Why are people walking around with other peoples passes?

We know the reason why.

[Dino_Choi]

You can ask for an administrative settlement up to "the courthouse steps" .... but TfL aren't obliged to agree / offer one.

 

What is "FAW"?

 

Did her letter explain how the mistake had been made? Offer an unqualified apology? Ensure TfL knew that she would never do so again ? Offer their administrative costs and any fare due ? Avoid any blame towards TfL staff?

 

 

 

After 2 years a conviction (with no prison sentence a possibility) shouldn't count against her BUT she MUST declare it!

Declaring it and them deciding it is unimportant won't matter.

NOT declaring it could lead to an absolute refusal to allow her to remain on account of "making a false statement"

 

She will write a letter to TfL and apologise and ask for an out of court settlement. Hopefully they will agree to it.

 

I will give an update to any progress made later. Thanks a lot for the replies.

 

BTW, FAW.....just a typo mistake, I had no idea how it come out. Sorry to disappoint you guys.

[Guest]

More likely an abbreviation than an acronym ..... but we'll see if / when the OP lets us know!

 

urban = Fat Angry Woman! wld that fit?

 

anyway, are these useful

 

Tier 1 p51 here https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/341113/GGFR_Sec2v17.0_EXT.pdf

 

as referred to here p1 para 6 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/300085/T1__I__Guidance_04-14.pdf

[BazzaS]

urban = Fat Angry Woman! wld that fit?

 

anyway, are these useful

 

Tier 1 p51 here https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/341113/GGFR_Sec2v17.0_EXT.pdf

 

as referred to here p1 para 6 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/300085/T1__I__Guidance_04-14.pdf

 

That deals with Tier 1 (Investor) visas : which is the OP.

 

His wife will be assessed as per a "family member " : so per 'Appendix FM'

 

To the OP : What legislation is she being summonsed under?

 

Since it was a bus, likely either regulation 7(1)b of the The Public Service Vehicles (Conduct of Drivers, Inspectors, Conductors and Passengers) Regulations 1990,

 

http://www.legislation.gov.uk/uksi/1990/1020/regulation/7/made

 

 

Or S25(3) of the public passenger vehicle act 1981

http://www.legislation.gov.uk/ukpga/1981/14/section/25

 

Both of these APPEAR to be strict liability, as they make no mention of intent.

 

However the S25(3) has a caveat! S68(1) : "It shall be a defence for a person charged with an offence under any of the provisions of this Act mentioned in subsection (2) below to prove that there was a reasonable excuse for the act or omission in respect of which he is charged."

 

http://www.legislation.gov.uk/ukpga/1981/14/section/68

 

So, it will be hard to defend a Regulation 7(1)b charge.

If summonsed instead under S25(3) : you need advice from a solicitor whose area of practice is criminal law.

 

Your wife might consider pleading not guilty..... If found guilty she then faces a larger fine than she'd get if she was to plead guilty but she might be found not guilty if she establishes any doubt that she had a "reasonable excuse".

 

If you have between £750,000 and £1 million invested (and the balance of the £1 million to hand), as the Tier 1 (Investor) requires ..... you might consider investing in a specialist solicitor?

[Guest]

bazza

am with you re family member. ie will wife be allowed? seems same/similar '12 mths' applies?

fm appendix https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/336952/Immigration_Rules_-_Appendix_FM.pdf

 

yes, given the wealth, sol advice shldnt be a prob.

[obiter dictum]

Is the application for immigration status from a national outside, or inside the EU

Is the applicant in a relationship with a Citizen of the EU

[BazzaS]

Is the application for immigration status from a national outside, or inside the EU

Is the applicant in a relationship with a Citizen of the EU

 

The OP has a Tier 1 (Investor) visa. Their wife has a 3 year visa, and needs 5 years residence.

 

That doesn't sound like either are EU citizens (who would have entry / residence / work rights under TFEU Articles 26 and 45, and Directive 2004/38).

[obiter dictum]

That was what i was trying to confirm as totally different legislation applies.

 

And under Article 45 a non EU national can be married or in a civil partnership with an EU national and all that will be required will be an entry Visa that will last 5 years, Directive 539/2001 or residency permit

Criminal convictions then will not apply. Article 45(3) allows a member state a Derogation to Treaty Law only to public policy, security, or health.

 

Under Article 27(2) previous convictions shall not justify a Derogation unless that conviction gives rise to conduct as a threat to public policy.

 

All I was asking was a question, I was under the impression this was a self-help forum, not a “Willy Waving exercise

 

[BazzaS]

That was what i was trying to confirm as totally different legislation applies.

 

And under Article 45 a non EU national can be married or in a civil partnership with an EU national and all that will be required will be an entry Visa that will last 5 years, Directive 539/2001 or residency permit

Criminal convictions then will not apply. Article 45(3) allows a member state a Derogation to Treaty Law only to public policy, security, or health.

All I was asking was a question, I was under the impression this was a self-help forum, nat a “Willy Waving exercise

 

 

 

Not " willy-waving", (after all, it was you who started introducing eu citizenship .....) but it would be nigh on impossible (or absolutely impossible) for either to be EU citizens for the OP to be posting what he had already posted

 

The information available to you before you posted included:

a) OP has Tier 1 (Investor) Visa

b) wife has 3 year visa (not 5 year residence card as per Directive 2004/38 Article 10)

 

How were you considering either could be EU nationals?

 

The wife's 3 year visa means she isn't an EU citizen.

The wife's 3 year visa also means HE isn't an EU citizen - even without the £750,000 minimum investment being a bit extreme for an EU national (who wouldn't be mandated to invest even a penny!)

 

(Was your point going to be that EU nationals could avail themselves of R v Bouchereau to avoid a minor criminal conviction being considered as a bar?)

 

http://ec.europa.eu/social/main.jsp?catId=953&intPageId=1220&langId=en

Section 5 (public policy), 4th case down.

 

If I wanted to "willy-wave" : instead of focusing on the OP's situation (as I have), it wouldn't have been hard to note:

You comment on "Directive 539/2001" :

a) It was a Regulation, not a Directive

b) it never applied to the UK, [see para (4)] so your mentioning it is irrelevant to the OP

 

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001R0539&rid=2

 

If you want me to start "willy-waving" I'm happy to do so, or to quote EU law back at you : but maybe best to continue such on a different thread ?