Uk Visa With Criminal Record

[DC1066]

My Thai girlfriend has a police record - not minor but nothing that meant a

prison sentence.

I want to know how this will affect our visa application - before or after we get married.

If anyone has experience your help would be greatly appreciated.

[GU22]

Have a read of Criminal Convictions (hers Not Mine!), Are they prejudicial? Settlement Visa UK Scouse's post of 2005-12-26 04:09:23 ( No. 9 in the thread) is especially relevent

Paragraph 320 (18) of the immigration rules states that entry may be refused when:-

"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"

In other words, if any one of the offences your g/f committed in Thailand could have attracted a term of imprisonment of 1 year or more had they been committed in the UK, then the visa may be refused. Whether she was actually sentenced to 1 year or more is neither here nor there: it's a question of could her actions have attracted such a sentence.

However, you then have to consider the Rehabilitation of Offenders Act, details of which can be found here. Should sufficient time have elapsed since her sentencing, then the offences don't need to be declared.

Additionally, the person who considers the application has to take into account any compassionate factors and, if these outweigh the seriousness of the criminal acts, the visa may be issued.

[vinny]

See also 26.5 - Refusal on grounds of criminal conviction

[DC1066]

Thanks all - I guess more checking is needed.

She received community service. I don't think the charge would mean prison here, but not sure so need to check.

Thanks again, if can give any more help, please do.

[DC1066]

You've helped so far so if anyone from the UK legal system posts on here, maybe can help again?

To tell you what she did - she took around 400 quid (30,000 baht) from the company she worked at. Problems at home and pressure from friends caused it and didn't keep the money herself and did give it back after caught, so can work on the sob story a bit.

She had to do 1 day a month community service for 1 year and this has just finished.

The legal help I need is the tricky bit as the charge was "embezzlement" which sounds nasty.

The $64,000 question!! Is this likely to have resulted in a prison term of 12 months or more in the UK for a first (and only) offence?

Again your help would be appreciated.

[the scouser]

Community service has a rehabilitation period of 5 years. Therefore, her conviction is not considered spent under the Rehabilitation of Offenders Act and she should declare the conviction on the visa application form. Had she commited the offence in the UK would it have attracted a prison sentence in excess of 1 year? The answer to that, I'm afraid, I don't know. It is likely that the ECOs in Bangkok won't know either, and they might well have to defer the application in order to seek guidance from UK Visas.

Scouse.

[Jersey_UK]

I was about to post the link to "My" thread..........but someone beat me to it!

Just to say that we have not yet started the SV process - so I am afraid I cannot tell you how things work in practice. I would however appreciate you posting here again once you do find out what happens in practice.

I am sure that we are not the only ones with other halfs who have had "legal difficulties"!

[DC1066]

It is likely to be 6 months before we apply.

I want to make sure I put in the best case possible so will do as much research as I can.

If I pick up anything useful I'll post it here and would appreciate it if you could do the same.

[Dragonman]

You've helped so far so if anyone from the UK legal system posts on here, maybe can help again?

To tell you what she did - she took around 400 quid (30,000 baht) from the company she worked at. Problems at home and pressure from friends caused it and didn't keep the money herself and did give it back after caught, so can work on the sob story a bit.

She had to do 1 day a month community service for 1 year and this has just finished.

The legal help I need is the tricky bit as the charge was "embezzlement" which sounds nasty.

The $64,000 question!! Is this likely to have resulted in a prison term of 12 months or more in the UK for a first (and only) offence?

Again your help would be appreciated.

It is extremely unlikely that a first time employee theft of the magnitude you state would secure a sentence of 1 year or more. It would likely not be charged as embezzlement in UK. Whilst there are no strict guidelines, it depends on circumstances, spontaneous or over a long period, etc. The most likely scenario would be a suspended sentence. However I do not see how any Embassy or Visa Section could give an informed opinion. Even defence lawyers working day to day with Judges don't know what they're going to do next

[Jersey_UK]

If I pick up anything useful I'll post it here and would appreciate it if you could do the same.

Cheers. I intend to do this as well. My limited contribution to the well of knowledge

[Nilapat]

What about a prison sentence - when is it spent? When one is released from prison? Is it necessary to declare spent convictions when applying for a UK visa?

[Dragonman]

What about a prison sentence - when is it spent? When one is released from prison? Is it necessary to declare spent convictions when applying for a UK visa?

See vinny's link above.

[Nilapat]

Thanks!

[DC1066]

Q. for The Scouser

Re' your comment "It is likely that the ECOs in Bangkok won't know either, and they might well have to defer the application in order to seek guidance from UK Visas."

What is the process if an application is deferred?

Also for Dragonman:

You say "It is extremely unlikely that a first time employee theft of the magnitude you state would secure a sentence of 1 year or more. It would likely not be charged as embezzlement in UK."

I know that every case is different and don't expect a specific answer, but if not embezzlement, what would be a likely charge in the UK?

I don't want to lie on the application, but if I could use a term that is more acceptable than embezzlement and less likely to cause rejection or deferral I'd like to do so.

[Dragonman]

Q. for The Scouser

Re' your comment "It is likely that the ECOs in Bangkok won't know either, and they might well have to defer the application in order to seek guidance from UK Visas."

What is the process if an application is deferred?

Also for Dragonman:

You say "It is extremely unlikely that a first time employee theft of the magnitude you state would secure a sentence of 1 year or more. It would likely not be charged as embezzlement in UK."

I know that every case is different and don't expect a specific answer, but if not embezzlement, what would be a likely charge in the UK?

I don't want to lie on the application, but if I could use a term that is more acceptable than embezzlement and less likely to cause rejection or deferral I'd like to do so.

Embezzlement does not exist under common law in UK, but was introduced into Statute to stem thefts by accountants, lawyers, agents, public officials, etc. I do not know the details of your young lady's case, but embezzlement is rarely used unless fairly large amounts are involved. Crown Prosecution will normally use "larceny", nowadays more likely termed "common theft".

[the gent]

DC1066,

Perhaps entering the conviction as one of " false accounting " might seem less pejorative but still accurately reflects the offence. Noting the circumstances of the crime, the non custodial sentence and the fact that full restitution was made should all assist in demonstrating the relative pettiness of the theft and reduce its impact upon the application.

The fact that she is prepared to make a full disclosure is also in her favour.

Edited April 5, 2006 by the gent

[StateSix]

From the brief description of the circumstances, it would appear that in the UK she would be charged with theft (by employee), under Section 1 of the Theft Act 1968, which attracts a maximum sentence of 7 years. It is irrelevant if she didnt keep the money for herself, she still took it.

Although theft by employee is still dealt with quite harshly by the courts (compared to shoplifting), due to the trust issue in the employer/employee relationship, as it is a relatively small amount and a first offence she would not get a custodial sentence in the UK.

However, I interpret the Immigration Rule quoted earlier as being IF the offence COULD attract a sentence of 12 months or greater. As theft has a maximum sentence of 7 years, it would be covered here, in my opinion. Therefore you would be looking at being initially refused, then appealing under 'strong, compassionate reasons'.

Even if she did get into the UK, she may find it extremely hard to get a job, as she will have to declare the conviction (subject to the Rehabilitation of Offenders Act), and who wants to employ someone who has already stolen from their previous employer. Failure to declare past convictions is also an offence (Obtaining a Pecuniary Advantage By Deception).

[the scouser]

What is the process if an application is deferred?

Having made the application as normal, if it is to be deferred, the visa officer will refer the case details to, in this case, UK Visas in London. You will be advised to contact the embassy again a month or 2 later in order to establish whether a response has been received. The application will then be considered according to the instructions from UK Visas.

As an aside, I do agree with State Six that UK Visas/ECO can't act as a judge and ask of themselves whether they would have granted a custodial sentence in your girlfriend's circumstances, and that it is therefore a question of whether her offence could attract such a penalty.

Scouse.