Driving offences have long been one of the most frustrating reasons for refusal of applications for indefinite leave to remain. The rule that bit so harshly paragraph 322 (1C) (iv) of the Immigration Rules which made the refusal of ILR mandatory where the applicant had, “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”.
There was a lot of confusion around this rule: fixed penalty notices did not count as they were not reflected on the criminal record, but fines imposed by court triggered refusal of ILR. Challenging a fixed penalty bore the risk of being found guilty by a court of law which would jeopardise an immigration application and lawyers advised their clients not contest penalties to avoid aggravation.
The good news (we all need it!) is that from 1 December a non-custodial sentence, warning, or fine is no longer a mandatory ground for refusal.
Part 9 of the Immigration Rules has been replaced. The new provisions setting out criminality grounds for a mandatory refusal of applications for entry clearance or leave to remain are now in paragraph 9.4.1. It reads:
9.4.1. An application for entry clearance, permission to enter or permission to stay must be refused where the applicant:
(a) has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of 12 months or more; or
(b) is a persistent offender who shows a particular disregard for the law; or
(c) has committed a criminal offence, or offences, which caused serious harm.
Generally, the new rule is much harsher except in relation to offences punished by a non-custodial sentence. The main test here is the level of harm caused.
However, the good news come with a sting. Non-mandatory grounds for refusal (that is to say, the application may be refused by the decision-maker) set out in paragraph 9.4.3 read:
9.4.3. An application for entry clearance, permission to enter or permission to stay may be refused (where paragraph 9.4.2. and 9.4.4. do not apply) where the applicant:
(a) has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of less than 12 months; or
(b) has been convicted of a criminal offence in the UK or overseas for which they have received a non-custodial sentence, or received an out-of-court disposal that is recorded on their criminal record.
The 24 months amnesty period does not apply and where criminality comes in, the decision-maker has to consider each application on a case-by-case basis. There is less certainty, but there is room for good news and bad news.
Legal advice: drive carefully.