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Thomas
Thomas, Solicitor
Category: UK Immigration Law
Satisfied Customers: 6438
Experience:  BA (Hons), PgDip, Practising Solicitor
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Custodial vs Suspended and immigration into the UK

Resolved Question:

Hi, I'm just looking for clarification regarding custodial vs. suspended sentence and implications in relation to immigration into the UK on a 2 year work visa. I received a suspended sentence for a mistake that I made in my younger years (pleading guilty as I was too scared to fight the charges) There was no actual prison term served, but I still have a conviction recorded against my name.
The convictions relate to a an underage GF. I was 21 at the time, she told me she was 18, and we met in a club.. Turns out she was 15 & 9 months, her family pursued the charges and here we are today. I still have another 7 years before I can apply for a spent conviction.



Any assistance you can offer would be appreciated Cheers
Submitted: 3 years ago.
Category: UK Immigration Law
Expert:  Thomas replied 3 years ago.

T_Graham12 :

Hi, are you asking how this offence would impact upon you being able to move to the UK?

Customer:

Yes I am

Customer:

or what options i have relating to working in the uk

T_Graham12 :

Work visas are very restricted at the moment. Would it be a Tier 2 Sponsored Skilled Worker's visa that you would be looking at obtaining?

T_Graham12 :

Please also state how old you were when you were convicted

Customer:

It would be possible to meet the requirements of a "job in demand" and find a company to sponsor me

Customer:

I was 21 at the time of the offence.. I was never actually charged and convicted until I was 24

Customer:

I'm now 28

T_Graham12 :

Ok, You are referring to a Tier 2 visa. These are the only worker's visas available unless you have access to significant funds.

T_Graham12 :

What was the length of the suspended sentence?

Customer:

Long story short, the girl had a falling out with one of her friends.. who told her parents etc.. they pressed the charged 3 years later.. In australia we have no defence to the charges

Customer:

36 months from memory

Customer:

i.e. it's either true or it's not.. my lawyer at the time didn't identify the restrictions that would be incurred from pleading guilty

Customer:

the court took into account the girl lied about her age and where we met (18+ club)

Customer:

hence the suspended sentence.

Customer:

Is a Tier 5 visa not possible currently?

T_Graham12 :

The UKBA are permitted to refuse visas if the applicant currently has unspent convictions.

T_Graham12 :

The Rehabilitation of Offenders Act 1974 governs the length of time until a conviction is deemed spent.

Customer:

I know this, do they take into consideration the difference between a suspended or custodial sentence?

Customer:

or do they consider it one and the same?

T_Graham12 :

For a suspended sentence of 36months then length of time until the offence is deemed spent is the same as if it were custodial, as unfair as that sounds.

Customer:

are there any options where I may be considered for entry into the UK for a working Visa? I recently spent a week there on holiday with no issues

T_Graham12 :

For all offences for which a sentence, custodial or suspended, of greater than 2 1/2 years this means that the offence can never become spent.

T_Graham12 :

This means that the UKBA would be able to refuse on this basis indefinitely.

T_Graham12 :

In the current climate they would certainly reject your application.

Customer:

even if the conviction is spent in australia?

Customer:

i was under the impression I wouldn't have to declare it if it was

T_Graham12 :

There is an element of discretion afforded to the UKBA, in that if you coudl demonstrate the the role you would perform once here would contribute greatly to the public good then this may get some traction.

Customer:

would that be done while in the UK or via a consulate?

T_Graham12 :

This restriction would not apply if you were making an application based on marriage or other relationship for which you could apply for a visa because you would be able to avail yourself of Article 8 Rights to a family and private life, but this does not apply to worker's visas unforunately.

Customer:

hmm

T_Graham12 :

You would apply to the Embassy, but the application would be sent to a processing centre nearest the embassy.

Customer:

i thought with a marriage visa i would still have to declare convictions etc

Customer:

and it would have the same restrictions as a normal visa?

T_Graham12 :

Declare yes, and the UKBA may even try to reject because of it (although this is less so now) but Article 8 rights pretty much trump eveything else.

T_Graham12 :

What do you mean by 'same restrictions as a normal visa' - are you referring to a spouse visa and what sort of restrictions do you mean specifically?

Customer:

have you got any reference to cases like this? in particular convictions like mine involving a minor.

Customer:

im not proud of it

Customer:

but circumstances at the time really didn't allow me to fight it

T_Graham12 :

No, not off the top of my head.

Customer:

is there any online resources where I could research this further?

T_Graham12 :

I appreciate you're not proud of it and I make no judgements but these are immigration rules and there is not a great deal of flexibility here.

Customer:

i'd rather not get married and then find out I can't get in ;)

T_Graham12 :

Please click accept so that I may be rewarded for my time. If you do not click accept then I do not receive any credit for the time I have taken to answer your question.

Customer:

one more thing.. in relation to the marriage side of things.. would it have to be a UK citizen, or just someone who has the right of abode

Customer:

i.e ancestory ?

T_Graham12 :

It would have to be either a UK citizen, person holding ILR, a person with a right of abode or EEA member state national who wished to come here to settle permanently with you as their husband.

Customer:

brilliant.

Customer:

thank you kindly

Customer:

sorry not sure if you;re still there

Customer:

but how long would the marriage have to last

T_Graham12 :

It would not have to last any amount of time, but you would have to convince them it was genuine.

T_Graham12 :

This means by producing documentary evidence of the credibility of your relationship.

T_Graham12 :

So, things like photos, correspondence, emails, evidence of phone calls, evidence of flight tickets, shared accomodation etc.

T_Graham12 :

Please click accept. I do not receive any credit at all for the time I have taken to answer your question unless you do and it does not cost you any more money to click accept.

Thomas, Solicitor
Satisfied Customers: 6438
Experience: BA (Hons), PgDip, Practising Solicitor
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