Uk Settlement Visa - Finally Time For Me To Sh#t Or Get Off The Pot!

[Jersey_UK]

I am somewhat conscious of the fact that I have been talking about doing a Settlement Visa on and off since Xmas day 2005.....and have yet to do so.........whilst their are plenty of reasons, I too am nonetheless kinda surprised that it is somehow now 18 months later..........

But I have now opened up a file by signing a sponsorship undertaking with the Jersey Immigration. ETA for the actual SV application is now end of Sept 2007. Honest!

The good news is that I think we are pretty much ok on providing evidence to support our contention that we have actually met!, and that we have had an ongoing relationship now for over 2 years - and on the back of this we have now married. (albeit in truth the basis from which our relationship developed to the current point was the extensive contact we had in Thailand going back to around 1999 - but we are unable to evidence this for Visa purposes - but such is life).

The bad news is that we do still have the "hurdle" of her prior drug use convictions to deal with. I received lots of advice, links and points to consider in this thread (amongst others) Criminal Convictions (hers Not Mine!), Are they prejudicial? Settlement Visa UK.........but the upshot being the convictions have not gone away, she has a conviction for drug use that resulted in a 9 month sentence, ending approx 3 years ago. From my reading of the Rehabilitation of Offenders act this will be "spent" in another 7 years..........therefore it is now disclosable.

The "easy" answer is (or at least was before I plastered enough details to identify our application all over the internet!) to lie that she has no prior convictions. But I / we do not want to do this, as well the the principle involved (yeah, honestly!) their is the practical issue that if she is later discovered to have lied she could end up having her visa revoked. Living in a small community things do have a habit of surfacing. Both I and she do not want to live our lives having this hanging over either of us.

So we come back to disclosing..........whilst my understanding was that doing so will not be an automatic refusal, my (re) reading of the relevent rules does not provide me with a great deal of comfort that this is indeed the case for her..........

Border and Immigration Home Law and Policy Part 9 - General grounds for the refusal of entry clearance, leave to enter or variation of leave to enter or remain in the United Kingdom

"Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused

(18) save where the Immigration Officer is satisfied that admission would be justified for strong compassionate reasons, conviction in any country including the United Kingdom of an offence which, if committed in the United Kingdom, is punishable with imprisonment for a term of 12 months or any greater punishment or, if committed outside the United Kingdom, would be so punishable if the conduct constituting the offence had occurred in the United Kingdom;"

My reading of this is that unless "strong compassionate reasons" can be provided (and accepted) that she will "normally" (in practice automatically?) be refused a Visa. Given that drug use carries a potential sentence of over 12 months.

Now, my thinking is that as part of the Settlement Visa application that we should also be providing "strong compassionate reasons", however I am not sure whether the reasons should be mine, hers or ours? any ideas?

I am very aware that it will be a total judgement call from the powers that be that any "Strong Compassionate Reasons" are acceptable - I am just thinking of providing them with the opportunity to at least be able to issue the Visa on this basis. Even if they do in practice decline to take up this opportunity (note that this being Jersey we have no ability to appeal).

Also I see that going down this route appears to involve a decision being made higher up the chain than usual:-

Diplomatic Service Procedures - Entry clearance Volume 1 - General instructions (08/06/06) 26.5 - Refusal on grounds of criminal conviction

"If there are compassionate or exceptional circumstances involved, it may be possible for entry clearance to be issued on authority from the Home Office on a discretionary basis. Applications falling within this category must be referred to the ICD for a decision".

Apologies for the length of this post, yer should see the first draft of my Sponsorship letter. War and Peace was shorter

Edited June 29, 2007 by Jersey_UK

[Mid]

didn't vote , wouldn't have a clue ,

however

I wish you both the best of British ......................

[the scouser]

There are various issues at stake here.

Before you actually tick the "yes" box on the application form, you should consider whether what your wife did is actually an offence and, if so, whether it falls within the ambit of para 320(18) of the rules.

Firstly, you say that your wife's conviction was for drug use. To the best of my knowledge, this is not an offence in the UK (or Jersey): possession and supply, yes, but not use. Para 320(18) says that if the offence was committed outside of the UK, then a comparison has to be made to a similar offence having been committed in the U.K., and I don't think there is one. Therefore, for the purposes of the visa application your wife has not committed a relevant offence.

Secondly, and accepting for a moment that what your wife did is an offence in the U.K., para320(18) says that it would have to have attracted a sentence in excess of 12 months' imprisonment in order to be relevant. You therefore have to establish whether the offence was of such a severity that your wife would have been sent down for that length of time had she been up to her tricks in Jersey. My visceral instinct is she wouldn't have. NB the distinction between would and could.

So, I would tick "yes" on the application form, but then address the issue as I have done above in your covering letter, pointing out why it is ultimately irrelevant to your wife's application. Additionally, if she has either been on any treatment courses, or has since held down a good job, or has undertaken good works etc., then include details of these in order to demonstrate that what occurred is in the past and she's a reformed character.

Essentially, the embassy only act as information gatherers in this instance, and then refer the lot to Immigration in Jersey which is where the ultimate decision will be made. As Jersey is a small community, it may be time for you to start befriending your local IO and taking him to the pub for a cosy chat over a few beers.

I voted dead cert, by the way.

Scouse.

[paully]

I'd actually vote a 4th option: 'highly probable'. Your GF should certainly disclose the conviction and it should be addressed in the application and papers. I take Scouse's point that, strictly speaking, your GF would not have committed an offence under UK law in 'using' drugs but would just point out that, as she was given a 9-month sentence, it was certainly taken fairly seriously by the Thai authorities so should not be dealt with too lightly or flippantly in your/her explanation of the matter. It would also depend, in part, on which controlled substance she was using when she was busted - was it smack?.

But, if there's nothing else at issue I don't see why she should be refused if all the papers are in order.

Edited June 29, 2007 by paully

[Jersey_UK]

The annoying thing I always find about dealing with folk who do know what they are talking about is that they have a tendency to be right and to pick up things I do not ........despite me closely studying the wording.

There are various issues at stake here.

Before you actually tick the "yes" box on the application form, you should consider whether what your wife did is actually an offence and, if so, whether it falls within the ambit of para 320(18) of the rules.

Firstly, you say that your wife's conviction was for drug use. To the best of my knowledge, this is not an offence in the UK (or Jersey): possession and supply, yes, but not use. Para 320(18) says that if the offence was committed outside of the UK, then a comparison has to be made to a similar offence having been committed in the U.K., and I don't think there is one. Therefore, for the purposes of the visa application your wife has not committed a relevant offence.

Ah, yes I see what you are saying.........Unfortunately I used the phrase "Drug use" as a catchall principally to indicate that she was not convicted of supplying, this being universally treated as the more serious offence. I did not look specifically into whether she was convicted of use instead of possession........from our previous discussion something makes me kinda think that she probably was convicted of possession (how else do you use drugs?) and I simply assumed (never assume!) that they are one and the same. But I will go and clarify this point, and then check whether use is a crime in Jersey, as well as possession. But I am not going to build my hopes up on this point.

Secondly, and accepting for a moment that what your wife did is an offence in the U.K., para320(18) says that it would have to have attracted a sentence in excess of 12 months' imprisonment in order to be relevant. You therefore have to establish whether the offence was of such a severity that your wife would have been sent down for that length of time had she been up to her tricks in Jersey. My visceral instinct is she wouldn't have. NB the distinction between would and could.

So, I would tick "yes" on the application form, but then address the issue as I have done above in your covering letter, pointing out why it is ultimately irrelevant to your wife's application. Additionally, if she has either been on any treatment courses, or has since held down a good job, or has undertaken good works etc., then include details of these in order to demonstrate that what occurred is in the past and she's a reformed character.

A chink of light! - "NB the distinction between would and could"...........yes, I missed this. From my reading of the local paper over many many years (where they do still print the offences and outcome of court cases and also name the folk concerned) my gut feeling is that purely self inflicted stupidity through drug use / possession would nowadays not attract a 12 month prison sentence in Jersey, although quite likely some sort of Jail time - albeit that the possible sentence is I am sure longer than 12 months.........but I will need to look into this further.

Also the holding down a good job / undertaken good works / treatment etc ipart is on the agenda already to be included on the SV application, and am trying to couple this with references from reputable folk who know her well - albeit as I am sure you appreciate folk of actual repute (in Thailand especially) would not put their name to anything like this lightly............and her / our social circle is not exactly brimming with suitable people who would be approachable.

(I was half tempted to look into approaching a family freind / business associate of her late father, on basis that as we could apparently have invited him to the wedding (if it had been "an event" and a suitable remuneration was forthcoming.........and either of us wanted him there!).......an Ex PM (no, not that one!).......but this would not perhaps be entirely a plus point to have his name on a reference, especially for character - even if I could afford it. Sometimes in Thailand yer really cannot make it up ).

Essentially, the embassy only act as information gatherers in this instance, and then refer the lot to Immigration in Jersey which is where the ultimate decision will be made. As Jersey is a small community, it may be time for you to start befriending your local IO and taking him to the pub for a cosy chat over a few beers.

I voted dead cert, by the way.

Scouse.

A cosy chat over a few beers? I wish!, but I am afraid I am not much of one for the Pubs anymore, the main reason why I have rarely been drinking in recent years is due to the Missus (and no, I did not get to Alky! - I managed to stabilise at serious p#ss head ).........getting ones "sh#t together" and moving on with life has not been a one sided affair solely on her part..........but I am starting to digress

I am afraid I am not really "connected" over here - the most I could rustle up is a local politician (Jersey equiv of an MP, albeit not "mine") who has been a family freind since I was a kid and with whom I am also on good personal terms with and have the occassional business dealings with..........not really sure what use I could or would want to put him to, perhaps in my naivete, I really do want to beleive that I live in a world where these things do not matter...........despite oft seeing evidence to the contrary.

Anyway, am off down the local tax office this afternoon, to make sure I start getting the Married Mans tax allowance (we have some quaint stuff down here!) which last time I checked a couple of years back did not require a wife to be living in Jersey, only to declare her income here (£40 x 12!!).........the irony being that whilst she is in Thailand she will effectively be costing the Great Jersey Tax payer, whereas when over here she will be putting into the pot............as she will be working and is eligible to claim b#gger all.

BTW I voted "rather you than me"

[the scouser]

I've had a ponder and am going to toss a new thought into the ring.

For the reasons already stated, I believe your wife can avoid refusal under para 320(18). However, the Jersey IO could possibly still consider refusal under 320(19) which states:-

where, from information available to the Immigration Officer, it seems right to refuse leave to enter on the ground that exclusion from the United Kingdom is conducive to the public good; if, for example, in the light of the character, conduct or associations of the person seeking leave to enter it is undesirable to give him leave to enter.

In other words, they could argue that irregardless of whether her criminal conviction is relevant, the mere fact that she has been involved in the murky world of drugs casts sufficient doubt over her character and conduct as to warrant her refusal. The onus will therefore be upon your wife to demonstrate that she is a reformed character.

she probably was convicted of possession (how else do you use drugs?)

It's bloody hard to be done for possession if you've taken the lot.

Scouse.

[Jersey_UK]

I've had a ponder and am going to toss a new thought into the ring.

For the reasons already stated, I believe your wife can avoid refusal under para 320(18). However, the Jersey IO could possibly still consider refusal under 320(19) which states:-

where, from information available to the Immigration Officer, it seems right to refuse leave to enter on the ground that exclusion from the United Kingdom is conducive to the public good; if, for example, in the light of the character, conduct or associations of the person seeking leave to enter it is undesirable to give him leave to enter.

In other words, they could argue that irregardless of whether her criminal conviction is relevant, the mere fact that she has been involved in the murky world of drugs casts sufficient doubt over her character and conduct as to warrant her refusal. The onus will therefore be upon your wife to demonstrate that she is a reformed character.

Actually I saw this............I am hoping that as she hasn't looted a Country for Billions of £££'s or ordered several thousand people killed that she falls under the bar for this test..........probably just as well Pol Pot is dead - for Premier league football

To summarise then, notwithstanding the previous posts (I have a bit of digging to do) a 95%++ probability of needing to disclose and then "just" (LOL!) evidencing that she has turned over a new leaf...........they have plenty of scope to refuse for good reasons, but not a requirement to do so. To be honest I find it hard to argue with this really. Ball firmly in my / our court.

she probably was convicted of possession (how else do you use drugs?)

It's bloody hard to be done for possession if you've taken the lot.

Scouse.

I would guess so

From what the Missus says, basically "when you is nicked you is nicked" and unless the Plod were claiming anything wildly out of order she / others basically just put their hands up to whatever the charge was. they knew they were basically guilty, plod knew they were basically guilty.......specifics were not always a matter of great importance and arguing over minor things (UK style) can either get you later nicked for worse or waking up dead.

BTW have now been down to the local tax office, got me Jersey married mans allowance - her earnings get on my Return from the date of marriage (May to Dec = £320) but I get the full allowance for the 12 months to Dec - I think that is £400 odd quid in my pocket...........helps towards the cost of a SV!

[DenThai]

Secondly, and accepting for a moment that what your wife did is an offence in the U.K., para320(18) says that it would have to have attracted a sentence in excess of 12 months' imprisonment in order to be relevant. You therefore have to establish whether the offence was of such a severity that your wife would have been sent down for that length of time had she been up to her tricks in Jersey. My visceral instinct is she wouldn't have. NB the distinction between would and could.

Saw this topic when seeing if I had any replies to my post. I have and am very grateful.

Obviously a long story here. Not qualified to vote, only to wish Jersey best of luck. Go for it. Nothing ventured etc.

My take on your point.

The key phrase is Would be so punishable.

I interpret your comment as saying the minimum UK sentence for a particular crime is 12 months or greater. I think the maximum sentence which can be imposed must be 12 months or greater. Not what the law mandates but what the law allows.

The key is punishable, meaning a judge may so punish. Would be so punished would support your contention, in my opinion.

If you substituted could for would it invites a civil servant to decide the probable actual punishment. Like in a movie where the police say "well, you could get 5 to 8 years for what you've done" even if the law allows a punishment of life imprisonment.

I may well be wrong.

I know nowt of criminal law but am discussing Jersey's post with a Thai friend as I write. She tells me drug use is an offence. Says 9 months is excessive for use, usually a fine, lenient for supply.

Maybe something trivial like passing on pills to friends? I hope not reason enough to deny a visa. New Jersey. Yes. Jersey. No.

[Jersey_UK]

I know nowt of criminal law but am discussing Jersey's post with a Thai friend as I write. She tells me drug use is an offence. Says 9 months is excessive for use, usually a fine, lenient for supply.

Maybe something trivial like passing on pills to friends? I hope not reason enough to deny a visa. New Jersey. Yes. Jersey. No.

I have noted your points on would and could!

9 months excessive? possibly for a first offence . but her sentencing did seem to vary wildly over the years for no apparent reason. Maybe the court had a bad day or just got fed up with her? or their was a "get tough" memo out that week?.......maybe her air or resignation / acceptance got taken as sign she just could not really give a sh#t (surely not!) or not impossible she said something unhelpful (??!!). Maybe one day I will go for court transcripts Anyway, she was very clear that the reason she was never done for supplying was that she understood fully the difference that being done for supplying would mean (therefore she was deliberate in avoiding this - of course it helped make this decision that she did not need to deal to fund her own drug use).

Anyway, part of her problem jail time wise over the years was a refusal to ever involve family members in helping her out, she does have some family members respectable enough to sign for her both on bail and also to enable her to have far less sentences by being let out on a couple of years probation. Plus I get the feeling from talking with her over the years about her "adventures" that if someone can show a supportive family that treat the matter seriously that courts can be a lot more lenient..........than when dealing with recidivists