UK Settlement Application With Criminal Record

[jasewoz]

Hi all.. I've been scouring the net for info on this topic and read hundreds of interesting posts and replies but I haven't quite found what I'm looking for, so here is my problem...

Me: 40yrs, UK born and bred, lived in Hong Kong for 10 years for work, the last 2 years spent half in HKG, half in Bangkok with my...

Wife: 38yrs, Thai national, met 2.5yrs ago Jan 2008, married 1.5yrs ago Jan 2009, relationship genuine and loving,

Daughter: 12yrs, Thai national, from wife's previous relationship, wife holds legal proof of sole custody of child,

Son: 4months Jan 2010, dual nationality Thai/British holding both passports.

Desire: Entry Clearance to the UK for my wife.

Obstacle: Wife's criminal conviction 2yrs ago in HKG which will be spent after 5yrs, sentence was £350 fine only.

1st Appl: Oct 2008 HKG. Visitor Visa. Rejected due Criminal Record under Para 320(18). Corresponded with ECM after research and was assured the decision was correct.

2nd Appl: Jun 2009 BKK. Family Visit Visa. Rejected under Para 41(i)&(ii) Genuinely seeking entry for limited stay & Intends to leave after the visit. ECO's reasons: Conviction not spent, compassionate circumstances considered but commitments in Thailand not strong enough to encourage return, no evidence provided that my 74yrs mother is frail and unable to travel 6000miles alone. Considered Article 8 of ECHR, convinced that family life exists, refusal will interfere with it but immigration control takes precedence in this case. [Not at all happy with that rubbish, but decided to re-apply not appeal].

3rd Appl: Sep 2009 BKK. Family Visit Visa. Rejected due Criminal Record under Para 320(18). [Cannot argue with that, just wanted the other rubbish straightened out].

Next Appl: Soon. HKG or BKK. Settlement Visa.

Reason: It is time to go back to the UK taking my wife and kids with me. There are many reasons to go back to the UK but now I feel like I have to prove each reason I mention beyond any doubt. (UK standard of education, Asian pollution and its effect on kids health, to raise kids around extended family, to let mum watch her grandson grow, to take care of mum as she turns 75 and beyond, I could go on...)

I have heard that entry can be refused for a foreign wife but human rights concerns circumvented by simply suggesting living together abroad. That is effectively saying that if I want to be with my wife and kids, I cannot return to my country of birth, surely my human rights are being infringed upon?

My Questions:

1. Would applying in HKG provide a better chance of success than BKK due to the assumed greater number of fraudulent applications lodged in BKK vs HKG?

2. Do I need a reason to return to the UK (alone and/or with family) ?

3. Can my wife be refused entry to the UK even if I will be living there with our children?

4. Would the appeal tribunal back up this human rights violation simply because we could choose to live together as a family in Thailand?

5. Is there something I have overlooked? Is there a better way to go about this?

6. Is there a simple method of achieving my goal without labouring the myriad reasons one could return to one's motherland?

...hope someone may be able to help. Appreciate your time.

If anyone wants to jump on these comments, feel free!!

A. Criminals do live in the UK, they are not required to be deported, so should they be refused entry to the UK? Should it depend on their crime? Is the rehabilitation period until the conviction is spent a valid way of assessing character?

B. Should entry clearance really be based on the maximum possible sentence for a UK crown court appearance? Magistrates court has a more lenient sentence for the same crime. The actual sentence handed down by the judge took into consideration all mitigating circumstances (first offence etc) but the UKBA policy does not. Should it really be so conservative? Should it depend on which country the judge made the decision?

[JohanV]

You don't mention what type of crime your wife was convicted for.

I guess it matters, not only the penalty - but the nature of the crime. Just see the debate on how Thaksin's crimes are evaluated in Europe..

If I were you I would get a good lawyer to look at it. Possibly a UK law firm with offices in HK and BKK.

Good luck, I hope you will find a way to sort it out without waiting another 3 years.

It's always sad to see how the 'little people' gets full bashing by strict rules while the big fish continues to swim freely.

Edited May 31, 2010 by JohanV

[Eff1n2ret]

Answers to your numbered questions IMHO are:

1. No. Even allowing that Entry Clearance Offices might vary in their general attitude towards applications, your wife's history of failed applications will follow her around and attract close scrutiny wherever she applies. In any case, unless she is legally resident in HGK, she could only make a settlement visa application in Thailand, her country of residence.

2. No

3. Yes

4. Caselaw has pretty much established the principle that the right to family life does not confer any automatic right to exercise it in any particular place.

I wouldn't hazard a comment on your last 2 questions

As regards your comment B, it may indeed seem paradoxical that the Rule stipulates that exclusion is based on an offence which is punishable by a one-year sentence or more, and your wife attracted sufficient mitigation to incur a fine only, but the decision-making process has now become pretty much a 'tick-box' affair where Immigration Officers and Entry Clearance Officers are not expected or encouraged to exercise discretion, thus a tick on the negative side pretty much condemns an otherwise sound application to failure.

I think you should seek the assistance of a well-qualified OISC advisor or a solicitor with good experience of such cases.

[7by7]

Q5

Don't know.

Q6

Your reasons for returning to the UK are irrelevant, I'm afraid. Your wife's reason is obviously to accompany you; but she appears to be currently disqualified from doing so because of her past criminal conviction.

Comment A

Criminals who are British citizens obviously cannot be deported from the UK. Criminals who are not British citizens can be, and often are; even if they have Indefinite Leave to Remain.

Both deportation and refusal of entry clearance do depend upon the seriousness of the offence. For entry clearance cases I cannot see another way of assessing the seriousness of the crime other than the current method of judging it on the sentence one would have received had the offence been committed in the UK.

As the UKBA have no other way of judging a criminals rehabilitation, then using the Rehabilitation of Offenders Act seems logical and right to me.

Comment B

It is not UKBA policy, it is the law; as determined by Parliament.

I agree with Eff1n2ret that you should seek the advice of a well qualified and experienced OISC adviser or immigration solicitor; although I fear that their advice may well be that you should wait another 3 years until your wife's conviction is spent.

[jasewoz]

Thank you for your replies.

I can't figure out how to edit my post so I'll just do it this way...

I'd like to change my questions based on those replies:

1. Would applying in HKG provide a better chance of success than BKK due to the assumed greater number of fraudulent applications lodged in BKK vs HKG?

2. Do I need a reason to return to the UK (alone and/or with family) ? If not, is it still wise to explain in full?

3. Can my wife be refused entry to the UK even if I will be living there with our children?

4. Would the appeal tribunal back this up simply because we could choose to live together as a family in Thailand? I am then being kept away from my mother and siblings in the UK. Isn't there a case for human rights violation in there somewhere?

5. Is there something I have overlooked that you know about? Is there a better way to go about this? A particular reason to be allowed entry that overrides Para 320(18)?

6. "Strong compassionate reasons" can override Para 320(18). Such as? Any examples?

7. Is it even worth applying or is this a guaranteed refusal, even at appeal?

[7by7]

Q1

As Eff1n2ret said, she has to apply in the country of her residence; so the question is, to be blunt, pointless. However, all ECOs in all posts use the same criteria, rules and guidance in assessing applications, so it should not make any difference. Particularly as the problem is not the possibility of a fraudulent application, but her past criminal conviction.

Q2

You, as a British citizen, do not need a reason to return to live in the UK. Wouldn't hurt to explain it, but it's not necessary and wont affect the main hurdle, which is your wife's conviction.

Q3

Yes

Q4

No, there is no case for a human rights violation. In situations like this a state's immigration law overrides human rights considerations. Also, there is nothing to stop you from visiting your family in the UK whenever you wish; as you have presumably been doing for the last 10 years while you've been living in Hong Kong.

Q5, 6 and 7

Best person to answer these is an OISC adviser or an immigration solicitor.

[the scouser]

The questions that have to be addressed are:-

1. Was the offence your wife commited in Hong Kong considered to be an offence in the UK? And if so,

2. Had it occurred in the UK, could it have attracted a prison sentence of at least 12 months?

Only if the two conditions above are fulfilled can a visa be refused on grounds of criminal convictions.

I've previously assisted in a case where the visa applicant had a conviction in a third country for prostitution and was refused on that basis. However, prostitution, per se, is not a criminal offence in the UK, so the refusal was fundamentally flawed and was ultimately overturned.

Scouse.

[RAZZELL]

The OP hasn't stated what the conviction was for?

I believe it might make a difference to the advice offered.

RAZZ

[jasewoz]

You don't mention what type of crime your wife was convicted for.

I guess it matters, not only the penalty - but the nature of the crime.

My guess is it doesn't matter, but I don't think guessing helps anyone so refer to:

ukvisas.gov.uk/en/ecg/refusals/refuseoncriminalconvictions

which states:

"Paragraph 320(18) of the Rules states that an application should normally be refused if that person has been convicted of an offence in any country, which could have attracted a term of imprisonment of 12 months or more if the offence had been committed in the UK."

To me that means the nature of the offence is irrelevant to an ECO/ECM when refusing entry.

I suppose it is possible that the nature of the crime may be relevant in the appeal tribunal...

[jasewoz]

The questions that have to be addressed are:-

1. Was the offence your wife commited in Hong Kong considered to be an offence in the UK? And if so,

2. Had it occurred in the UK, could it have attracted a prison sentence of at least 12 months?

Only if the two conditions above are fulfilled can a visa be refused on grounds of criminal convictions.

Those questions have already been answered by the fact that 3 visa applications have been refused based on those two points, contained in Para 320(18) and I stated that I had no argument with those decisions.

[jasewoz]

Q6

Your reasons for returning to the UK are irrelevant, I'm afraid. Your wife's reason is obviously to accompany you; but she appears to be currently disqualified from doing so because of her past criminal conviction.

My bad. I should have asked about "our" reasons for returning to the UK, not "mine" since the reasons are primarily concerning the wellbeing of the children. The decision to try a spell in the UK was "ours" not "mine"!

[the scouser]

The OP hasn't stated what the conviction was for?

I believe it might make a difference to the advice offered.

It doesn't make a difference. The law is quite unequivocal: it is simply whether the "crime" would be construed as such in the UK (after all, you can't be done for something that is not illegal (in the UK)), and whether, had the offence been perpetrated in the UK, it could have attracted a prison sentence of 12 months or more.

...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.

Also, 320(18) of the immigration rules pre-supposes that there is a just and fair charging/court process in the country in which the "offence" has taken place. As we all know, such a transparent process is not ubiquitous.

Scouse.

[the scouser]

The questions that have to be addressed are:-

1. Was the offence your wife commited in Hong Kong considered to be an offence in the UK? And if so,

2. Had it occurred in the UK, could it have attracted a prison sentence of at least 12 months?

Only if the two conditions above are fulfilled can a visa be refused on grounds of criminal convictions.

Those questions have already been answered by the fact that 3 visa applications have been refused based on those two points, contained in Para 320(18) and I stated that I had no argument with those decisions.

If you are convinced that the ECO is correct in his interpretation, you have little option but to sit out the rehabiltation period.

Scouse.

[jasewoz]

Q1

As Eff1n2ret said, she has to apply in the country of her residence; so the question is, to be blunt, pointless.

My wife and I spend part of the year in Hong Kong and part in Bangkok. She holds a Hong Kong dependant visa and ID card so that she may live with me when I am there (nice of the HK Government, especially considering the offence was committed there). I believe that she would therefore qualify to apply in Hong Kong.

As my wife holds visas for Hong Kong, Australia and Shengen States, my issue is obviously with the British Government and their lawmaking. Australian ECOs base their decisions on actual sentence handed down, not a theoretical maximum. Far more sensible in my humble opinion!

[jasewoz]

If you are convinced that the ECO is correct in his interpretation, you have little option but to sit out the rehabiltation period.

That would certainly be the easiest and cheapest option!

I wrote to a number of OISC advisers in the UK a month ago. One (Londonvisa) seemed particularly switched on so I am corresponding with them as we speak.

I think the advice to find an OISC adviser/solicitor with experience is good advice. I will search for someone who has successfully helped gain entry clearance for an applicant with a criminal record that is not spent! If I don't find one I will have my answer and will invite my UK family to join my wife and I for some champagne and brie across the water!

[the scouser]

Whether switched on or not, no adviser can change the law. Additionally, that you posted the question you did on an internet forum belies your claim to have such a trustworthy adviser.

Notwithstanding that, perhaps inadvertently you have provided your own resolution to the problem, and if you live with your wife in France she may qualify for a free "visa" to join you without her criminality being an issue.

Scouse.

[jasewoz]

Whether switched on or not, no adviser can change the law. Additionally, that you posted the question you did on an internet forum belies your claim to have such a trustworthy adviser.

Notwithstanding that, perhaps inadvertently you have provided your own resolution to the problem, and if you live with your wife in France she may qualify for a free "visa" to join you without her criminality being an issue.

Scouse.

This is passing the time but it's a bit frustrating sometimes...

I really shouldn't rise to your bait and contradict each and every sentence you write, but I'm afraid I have decided to do just that. Sorry.

1. Funnily enough I do realise an adviser cannot change the law. The question is, have there been cases of people being granted entry before their conviction was spent. A switched on adviser can do that research for me, though without doubt I would prefer to find a solicitor with this specific experience under his belt.

2. I said I am corresponding with an adviser who seems switched on. She was in court all last week so unable to 'advise me'. We are trying to arrange a time for a phone call (at £145 an hour). I have sent her a few emails with my details, of course she is not going to reply with lots of advice for free. The free advice is what I'm after here!

I'd prefer it if you didn't cast aspersions on my integrity. I gain nothing by lying on this forum.

3. I live in Hong Kong and Bangkok. Please consider reading the previous posts. The reference to France was a lighthearted way of saying we are able to visit France on my wife's Schengen Visa while inviting my UK relatives to join us as we cant visit them in the UK. I know it was a bit obtuse.

I'm afraid I don't get your point about a free "visa" to join me, are you referring to The Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely (Freedom of movement for workers) within the territory of the Member States? If so that won't work for us as we live in Asia.

Sorry to sound a bit 'off' but I couldn't just close my browser and walk away from your petty accusations.

I presume this post will be removed by the moderator after you have read my response, and rightly so, no-one likes to read our bickering!

[the scouser]

No accusations on my part. By your own admission, your wife is a criminal.

Taking in to account what you have written, I have provided you with the legal panacea, but you can't see the wood for the trees.

Why one would want free advice that one is then going to contend, whilst being prepared to pay £145.00 per hour for the services of a registered adviser, logically defeats me, but hey-ho!

By the way, there is no firm called Londonvisa (your spelling) that is registered with the OISC.

Scouse.

[Mossfinn]

Hang on a minute here Jase, Scouse is not firing rounds of detriment towards you.

First off, London Visa has been mentioned on here before, but check them out, unless they have achieved it recently, they are not OISC registered.

A specialised solicitor and an OISC Advisor bat on the same wicket, at international level some play like Ian Botham and some like Graham Hick.

[endure]

Scouse is one of the most knowledgeable and reliable visa advisors on Thaivisa. You'd be well advised to put that high horse back in the stable and listen to what he's saying.

[jasewoz]

Sorry. almost 6am here and haven't slept yet. I'm not functioning properly right now, screaming baby in one arm...

I had pages of OISC advisers that i wrote to a month ago, I'm shocked that I'm corresponding with a non-OISC bunch.

Thanks for throwing water on my fire Mossfinn, your intervention made me check my perspective and my dictionary!

I admit to needing a dictionary when reading some posts... "belies" was misinterpreted by me as an accusation of lying about having an advisor but I guess it means my advisor can't be very trustworthy if I'm on this forum.

I have been reading these forums for ages and noted 7by7 and Scouse as knowledgeable respondants. Perhaps I was deflated by the realisation that I may be banging my head against a brick wall.

I'm trying to glean as much info as possible from all sources before splashing the cash on the Settlement application but I have always been 50-50 on this pricey advisor phonecall. Since their first contact email was accurate and inciteful, I figured I could do worse than a 10 minute phone call to decide if they had my 'legal panacea' or not.

I'm am obviously overtired and consequently I still cannot see Scouse's legal panacea. The answer to my problem is in your post and I have missed it? There are currently a lot of trees in the wood. I'll come back to this after some rest. Sorry for jumping the gun.

Edited May 31, 2010 by jasewoz

[the scouser]

You mentioned that your wife has a Schengen visa, and that you may instead travel to France for some champagne and brie. It is that that could be the legal panacea. If you were to be construed as a "qualified person" whilst in France, your wife could then seek entry to the UK under the terms of the directive you quote above.

My invoice is in the post!

Scouse.

[jasewoz]

So I go to France and look for work for 'a reasonable amount of time' then slide into the UK with the wife and kids.

Brilliant legal panacea.

Worth every penny!

And thank you for improving my vocabulary today.

I didn't have my legal advisor's details earlier so I just wrote their email address 'LondonVisa'. Apparently it was missing the word 'services' when compared to their company name.

London Visa Services Ltd

Level 33, 25 Canada Square

Canary Wharf

E14 7LQ

Tel: 020 7038 8011

Registered Office 4 Tersha Street, Richmond, TW9 2LY

And I was greatly relieved to see this too:

OISC Registration F200200009

Edited June 1, 2010 by jasewoz

[7by7]

The company you mention above is, indeed, OISC registered, but so is Scouse!

So you have already had, for free, the advice of a qualified, registered professional; up to you if you want to pay another adviser £145 per hour to have that advice confirmed.

As mentioned, you could follow the EEA route, but to do so would need to show that you were exercising your treaty rights to live in another EEA country, e.g. France, not just there for a holiday.

[surinterry]

Jasewoz pm sent

[Kadafi]

How long would someone need to reside in say France to exercise there rights before returning to the UK with there partner?

[7by7]

I don't think that there is a minimum time, but one must have been exercising an economic treaty right, not just there on holiday.

From EUN2.14 Can family members of British citizens qualify for an EEA family permit? ('Surinder Singh' cases)

Applications for EEA family permits must meet the following criteria:

• The British citizen is residing in an EEA Member State as a worker or self-employed person or was doing so before returning to the UK.
• If the family member of the British citizen is their spouse or civil partner, they are living together in the EEA country or they entered into the marriage or civil partnership and were living together in that EEA country before returning to the UK.................

It does not matter if the only reason the British national went to another Member State was to exercise an economic Treaty right was so that he/ she could come back to the UK with his/ her family members under EC law.

BTW, fiances are not eligible for an EEA family permit.

[jasewoz]

In the interest of helping others in a similar position, here is what I have learned recently...

i. Seek the advice of an OISC adviser or immigration solicitor.

ii. A UK visa should be applied for in a country of residence.

iii. ECOs in different countries should give the same decision.

iv. UK Citizens don't need a reason to return to their home country.

v. A British husband can be living in the UK with British children and the foreign wife and mother can still be refused entry.

vi. If we want to live together as a family, we can do so in other countries without the need to live in the UK.

vii. Immigration law takes precedence over human rights.

viii. It doesn't matter what type of visa you apply for (visitor, spouse, settlement) the result should be the same.

ix. Wait until the conviction is spent.

So to sum up:

If you have a criminal record that is not spent and you wish to enter the UK you have these options:

1. Speak to an immigration solicitor. You may be able to fight your case at the Immigration Tribunal if you have the ££.

2. Live in an EEA country and try to gain access to the UK using the "Free Movement of Labour"

3. Provide "Strong compassionate reasons"

4. Wait till the conviction is spent. or possibly:

4. Enter the UK illegally

5. Show up at the UK airport without a passport

6. Fly to Ireland then sneak into the UK

(Not surprisingly, I haven't researched these last three options!)

My advice to anyone else out there is:

a. The only way to be sure of the answers to your questions is by reading all the information provided by the UKBA on their website. It is all in there somewhere. If you have special circumstances not covered on the UKBA website, get legal advice from an OISC adviser, from the list provided, not from a forum.

b. Should you rely solely on anonymous posters in a forum? Not in my opinion. They can give you some useful information, yes, but there may be more information out there which forum users don't mention.

(The "Free Movement of Labour" was described as a "free visa" by a qualified OISC adviser who then claimed he had solved all my problems with his "legal panacea" yet I had already researched this plus his advice was flawed by presuming incorrectly that I lived in France!)

c. Be wary of any advice you get, even from me!

One important piece of information still remains elusive:

What compassionate reasons are sufficient to enable entry by overriding para 320?

(Answers to this should come from an Embassy employee (ECO, ECM) or someone who has successfully achieved entry clearance when they could have been banned under para 320.)

If you have a conviction but have not applied yet:

If you declare the conviction you will get a five year ban. If you don't declare the conviction you risk a ten year ban!

If eligible to apply for a visa in a country other than that of the conviction, you could try that without declaring the conviction. But I have no idea if that would work, it's just what I would have done, with hindsight.

("Conviction" means conviction of an offence that could have carried a sentence of more than 1 year in jail if tried in Crown Court in the UK)

If you ask me, the UK Law needs changing. It's ridiculous that 25 Schengen countries and Australia will let my wife visit, but my home country will not let her step foot on their precious soil, though they don't have the resources to stop illegal immigration nor find criminal deportees. And why no UKBA passport check when leaving the UK at Heathrow last week, wouldn't that help the situation?

Good Luck!

Edited June 19, 2010 by jasewoz

[7by7]

Some interesting and valid points; but I would like to make some comments/observations.

b. Should you rely solely on anonymous posters in a forum? Not in my opinion. They can give you some useful information, yes, but there may be more information out there which forum users don't mention

Agree completely. Advice on a forum such as this is just that; advice. Some is good, especially when it comes from a qualified professional such as Scouse or TVE, some less so. If in doubt, check for yourself in the appropriate official publications, or seek professional advice.

What compassionate reasons are sufficient to enable entry by overriding para 320?

(Answers to this should come from an Embassy employee (ECO, ECM) or someone who has successfully achieved entry clearance when they could have been banned under para 320.)

Each application is judged on it's own merits, so something that has worked for someone else may not necessarily work for you. Unfortunately, experience has shown that asking the UKBA for advice in these situations merely results in a reply that can be simplified into "The only way to find out is to apply!"

If eligible to apply for a visa in a country other than that of the conviction, you could try that without declaring the conviction. But I have no idea if that would work, it's just what I would have done, with hindsight.

I don't know enough about other countries' immigration rules and requirements to say whether a conviction should be declared in an application and what effect doing so would have upon on that application. I do know, however, that not declaring something which is required is never a sensible option; which ever country one is applying to. Even if applying for an EEA family permit, unspent convictions need to be declared and may mean a refusal; although I believe that there is a less strict approach for 'minor' offences than that in, for example, the UK immigration rules.

If you mean applying to the UK in a different country than that in which the conviction occurred, doing so and not declaring the conviction is witholding a material fact, and could result in, as you say, a refusal and a 10 year ban from applying again. Even if one did get the visa and entered the UK, if this deception ever came to light one could be deported. They may even be subject to Para 320(11) of the rules, which could mean they would effectively be banned from the UK for life!

why no UKBA passport check when leaving the UK at Heathrow last week, wouldn't that help the situation?

Routine passport checks on leaving the UK were abolished by Labour some time ago as a cost saving measure. I agree that it is ridiculous. It makes it a lot easier for people to overstay and the money spent in finding and dealing with overstayers etc. is probably more than that saved!

However, the whole issue of how the UK government deals with overstayers and other illegals is far to complex to go into here.

[the scouser]

Actually, embarkation checks were abolished by the Tories.

As Max Boyce was prone to say, "I know, cos I was there."

Scouse.