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All criminal convictions to act as bar to settlement from today


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I have had to redraft this post, which had been intended to be a good news story about a positive development at the UK Border Agency and which I had scheduled for Monday morning. A nice start to the week, thought I. However, late last week it transpired that the Home Office gives with one hand but very much takes away with another, as we will see in a moment. For now, the original text of this post:

Some good news, for a change: the long running campaign to end the ‘no recourse to public funds’ limitation for victims of domestic violence seems to have succeeded. All credit to the Southall Black Sisters for yet again succeeding in a campaign that many will have thought doomed to fail. It was SBS that was behind the introduction of the domestic violence concession in the first place.

On 10 March 2011 the Home Office announced as follows:

“Overseas spouses and partners of UK residents who are forced to flee their relationships as a result of domestic violence will be able to access vital support services … Access to these services will be for a strictly limited period while the victim gathers evidence and makes a claim for residence based on the domestic violence, and while the UK Border Agency considers the application.”

See here for the full press release and here for details of the Sojourner Project which seems now to be a temporary stopgap.

The press release is a little light on details and does not explicitly state, for example, that the ‘no recourse’ condition will be completely removed or waived for affected individuals, or how this will be effected and how local authorities and other service providers will be notified in individual cases. The changes are said to come into effect in 2012 so there will no doubt be more details to follow in due course.

But not so fast! In a classic bit of poor drafting at the Home Office, Statement of Changes HC 863 announced a raft of changes to the rules. There was a clear technical mistake, which was pointed out to the Home Office. As a result, a new Statement of Changes has been introduced, HC 908, but with it some very bad news for victims of domestic violence. The following requirement has been inserted into paragraph 289A, and also the other settlement rules:

(v) the applicant does not have one or more unspent convictions within the meaning of the rehabilitation of offenders act 1974.

This unwelcome addition to the rules closes an escape route from domestic violence for any woman with any level of criminal conviction. Meanwhile, a woman with a criminal conviction still in an abusive relationship might succeed on human rights grounds (see below) and therefore has an incentive to remain in that abusive relationship.

The catch-all nature of the criminal convictions exclusion from settlement, introduced from 6 April 2011 by HC 863 and HC 908 for all or most categories of settlement as far as I can see, including family settlement, is an extreme step by the current Government. It is slightly easier to comprehend for economic migrants under the Points Based System, but is simply incomprehensible for family settlement cases. In a spouse case it means that a criminal conviction of any kind, no matter how relatively trivial, will either terminate the relationship by forcing the migrant spouse to depart these shores, or will force the British or settled spouse to leave their own country to continue the relationship. The exclusion also ignores the effect on any children of the relationship.

Inevitably, one would expect many human rights cases to succeed. No human rights application would normally be allowed by the UK Border Agency but those with the initiative and funds to take it further and access to a decent lawyer might well win on appeal or an application for judicial review. It looks like another example of deliberately marginalising those without access to the legal process, at a time when legal aid looks like it will be withdrawn for immigration cases such as these.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


13 Responses

  1. It’s a massive over-reaction by UKBA. My reading of the Rehabilitation of Offenders Act and guidance is that anyone who gets fined by a court for a comparatively minor offence has to wait 5 years for that to be spent, which pretty much bars them from any ILR application except long residence. Any imprisonment and you may as well forget it too. Sledgehammer and Nut spring to mind.

    1. The objective is to reduce numbers, come what may. It is a political solution to a political problem – in the political arena, who will stand up and say people with criminal convictions should be allowed to stay? Politicians aren’t brave or nuanced enough to say ‘what about minor convictions and splitting apart families?’

    2. Yes, it is a failure of leadership in the political classes. They are spineless and Labour were no better as we know very well. If all we have is politicians who are scared of telling people things they do not want to hear we are doomed as a country. The recent story that Labour ministers lobbied for legal aid to be withdrawn from claimants tortured in military detention (who might otherwise sue the MOD) shows their complete lack of values. For Miliband to compare the anti-cuts campaign to Mandela fighting apartheid shows that he also hasn’t a clue about what his govt, his brother in particular being clearly involved in covering up extraordinary rendition, got up to.

      For the left wing of the Labour Party it is pandering to their “core vote” and for the Tories
      descending to the idiocy of the Daily Express. As well as cowardice, there is a staggering lack of self-awareness. If we treat foreign nationals like garbage, will any of them come to study at out universities, award us the World Cup, trade with us, listen to us or give a toss about us? And these politicians are supposed to be educated for God’s sake!

    3. I would agree with you FM but would also add it’s about sending a message that those who wish to live in the UK need to be squeaky clean. From that perspective this is surely a good thing?

      Appreciate that it’s unfair in some respects as identified in other posts but equally, many migrants will sit up and take notice that if they wish to live in the UK they will need to abide by the law.

      I think this will reduce the number of migrants who commit offences in future and that in turn will lead to less of the sensationalist and tension causing headlines we often see in the red tops.

    4. Pretty harsh way of sending a message, to introduce a no-exceptions blanket rule that says ‘go home, and your spouse and children can either stay here or go with you.’ For a driving offence, for example. It is the single crappiest, ignorant, ill-thought-through, tabloid-pleasing piece of rubbish immigration law I’ve seen since I started this work over ten years ago. And that is saying something.

  2. Hi I noice that ILPA has already picked up on this “cock up”, if that is what it is. I understand the Home Office domestic violence unit were not consulted on this change in the rules and ILPA has informed the MP’s accordingly. Yes I have a desperate hope that domestic violence rule change was indeed a draughting cock up and will remove it before the changes are “debated”.

    To include it on family settlement makes no sense at all in light of the case law regarding miss use of paragraph 320(11) with regard to trafic offences and settlement and recent family Article 8 decisions of the supreme court and the ECJ decision in Zamoro.

    I recently had a garden gnome arguing that a traffic offence was a serious offence to justify deportation even if the person was settled with three British children. It seem that is a political decision that trancends parliamentary politics and places migrants and criminals in the same compartment when the goverment is in a real hole over cuts.

    By the way I am surely a “core labour voter” (white, working class) but am not impressed at all by labour or any other party decending into divide and rule.

  3. 17 years and different authors have made the Immigration Rules a quite extraordinary document. I really do not understand why a spouse must be clear of unspent convictions when applying for entry clearance but a fiancee is not subject to the same requirement.
    An unmarried partner can avoid the requirement by becoming engaged. Once here, he or she can then break off the engagement and apply for LTR!!!

  4. The Statement of Changes in Immigration rules (16/03/2011) states that “The applicant must not have one or more unspent convictions within the meaning of Rehabilitation of Offenders Act 1974”. It should be noticed that unspent criminal convictions include traffic offences. Hence migrant who has been convicted of driving offence would be deprived from ILR for another 5 years. Needless to say this change is retrospective and unfair

    An IT consultant who came from India in is currently on a Tier 1 visa, was convicted of a traffic offence in February 2011 with 5 points and a fine after hitting a lamppost. Although he was eligible for ILR in a year’s time, he would no longer be eligible under the new rules. He says “I am very depressed by these new changes being applied retrospectively. I strongly feel it’s unfair to change the rules for existing migrants. It causes great misery and uncertainty to hard working people like me who contribute so much to the UK economy but live in the constant fear of last minute changes.”

  5. It has been confirmed to the Immigration Law Practitioners’ Association (in a letter from the immigration Minister Damian Green MP, written in response to ILPA’s letter which was addressed to the Home Secretary and Equalities Minisiter, the Rt Hon Theresa May MP) that this is not being treated as a mistake, but owned by the UK Border Agency as deliberate. As well as survivors of domestic abuse, bereaved spouses and partners are also affected. Both groups had limited leave on the basis of their relationship, so there is no possibility of an extension of limited leave in that category. The implications for those turning to the Sojourner Project are unclear. The fear is that survivors of domestic abuse unable to qualify under the domestic violence rule, will remain trapped in their abusive relationship, applying for more limited leave as a spouse/partner (since they cannot apply to settle in the spouse/partner category either until the conviction is spent.) I am pleased to say that the Lord Avebury has laid a ‘regret motion’ in the House of Lords which will lead to a debate there about this matter. Meanwhile we are seeing an increasing number of expressions of concern about the change and we continue to urge the Home Office (and anyone else who will listen) to reverse these changes.

  6. When 320(7)(B) was introduced it was without exception. That didn’t last long. I suspect that this will go the same way.
    With a bit of luck, the exceptions will be drafted by yet another author and more confusion can reign.

  7. From Krishna’s comments about driving offences, could some-one clarify the situation with minor driving offences such as being caught making a mobile phone call whilst driving, and being flashed doing say 35mph by a speed camera in a 30mph zone.

    Personally I find the non-exemption and non-discretion for decision makers bizarre and potentially full of injustice. Surely a single “relatively minor” conviction should be routinely ignored.

  8. This is very disturbing. The HO has gone mad. There can be a blanket rule, there has to be discretion. Can anyone say if this new rule on ‘one or more conviction’ has any effect on naturalisation. The case worker could use his discretion if the applicant for natrualisation has a single minor unspent conviction e.g traffic offence. Just want to know if there are any changes to this.

  9. From an immigrant’s perspective, I think these rules are highly unfair especially because they are being applied retrospectively. Goal posts should not change after people have immigrated to the UK. Who knows the types of sacrifices these people have made in terms of selling off their properties / leaving well paid jobs, all that for a shot at having a better life for themselves and their children in the UK.

    Being a highly skilled immigrant when one applies for a skilled visa, it clearly mentions having the clear intention of making UK your home. If that is the commitment skilled people are required to make then the UK should also be committed to not throwing them out when they leave all they had behind to move to the UK.

    Also forget not if these policies stay the way they are, unfairness will drive skilled immigrants away. Weren’t fairness, honesty and politeness the principles that defined Britain to the whole world? If so then why treat those that intend to say here unfairly?

    These changes do not apply to me so far since I do not have a criminal conviction yet, hopefully they don’t have an impact comes the time of ILR – fingers crossed!