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Senior Partner
Senior Partner, Solicitor
Category: UK Immigration Law
Satisfied Customers: 13325
Experience:  Solicitor
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I was recently rejected a Tier4 Visa to study at the University

Customer Question

I was recently rejected a Tier4 Visa to study at the University of york for the following reason "On your application form you answered yes to the question do you have any criminal convictions in any country (including traffic offences?" in support of this application you have submitted documents that confirm you were convicted of an offense on 28 september 2010 for which you were sentenced to 6 months probation, a $415 fine and a restitution of $20.53 Paragraph 320 (18) of the UK immigration rules states that entry clearance should normally be refused- save where the immigration officer is satisfied that admission would be justified for strong compassionate reasons- for a 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. i have considered your offence and note that it is not considered spent under the rehabilitation of offenders act 1974. the rehabilitation period for a fine, a probation order or certain other sentences is five years. you will not therefore be considered rehabilitated until 28 september 2015. i have therefore considered the uk equivalent of your conviction and am satisfied that you have been convicted of a criminal offense that could have carried a custodial sentence of more than 12 months if that offense had occurred in the united kingdom. i have considered if there are any compassionate circumstances relating to your application. I note that yyou are able to complete your studies in the usa and i am not satisfied that any such circumstances exist that are of a sufficiently compelling nature for me to exercise the powers of discretion granted to me by paragraph 320(18) of the immigration rules. the grounds of 320(18) therefore apply. Given the above i have refused your visa application on this o cassion because i am satisfied that you meet the requirements of paragraph 245zv, however you have been refused under paragraph 320 of the immigration rules." : I have looked up law and sentencing information and I don't believe I should have been refused under this guideline. My conviction was a third degree misdemeanor retail theft of a really small nature (As in, $10 tops of merchandise. the $20.53 of restitution was paid because I was charged with three counts, and they threw out two with the idea that I would pay the restitution costs of those two charges, as you can see, the total shows that it was very small term. Also, the probation is an automatic part of any conviction in Ann Arbor, MI and the fines were court costs). If you look at the Theft Act of 1978:(http://www.legislation.gov.uk/ukpga/1978/31/pdfs/ukpga_19780031_en.pdf) (3) A person convicted summarily of any offence under this Act shall be liable- (a) to imprisonment for a term not exceeding six months ; or (b) to a fine not exceeding the prescribed sum for the purposes of section 28 of the Criminal Law Act 1977 1977 c. 45. (punishment on summary conviction of offences triable either way: £1,000 or other sum substituted by order under that Act), or to both. So, I think that says that I shouldn't be rejected. Also, here is a relevant page from the Crown Sentencing Manual they refer the ECO to. (http://www.cps.gov.uk/legal/s_to_u/sentencing_manual/theft_from_shop/): Title: Theft from shop Offence: Theft - other Legislation: S1 Theft Act 1968 Mode of Trial: Either way Statutory Limitations & Maximum Penalty: 7 years Which says the maximum could be 7 years. But going down the page a little farther. Relevant Sentencing Guidelines Sentencing Guidelines Council Definitve Guidelines - Theft and Burglary in a building other than a dwelling.Offences sentenced after 5/1/09. First time offender aged 18 or over who pleaded not guilty. No Planning or sophistication and low value Starting point: Fine Range: Condition discharge - Community Order (low) Low level intimidation or threat or some planning e.g. session on the same day or going equipped or some relevant damage Starting point: Community Order (Low) Range: Fine - Community Order (Medium) Significant intimidation or threats or use force resulting in slight injury or very high level planning or significant relevant damage Starting point: 6 weeks Range: Community Order - (High) 36 weeks Vulnerable victims involving and intimidation or threat of force Starting point: 12 months Range: 36 weeks - 4 years At the very most, I feel I would fit in the third category (it depends on what "very high level of planning" means exactly). I certainly was not violent or used any sort of force. Even the most severe on this level has a maximum sentence of 4 years in actual practice according to their guidelines, not the 7 above.
Submitted: 5 years ago.
Category: UK Immigration Law
Expert:  Senior Partner replied 5 years ago.
I am sorry to say I do not think you have any grounds of appeal. the immigration rules provide for refusal if the offence is punishable by more than 12 months imprisonment. that does not mean that the particular sentence you received has to be that severe. As you point out yourself theft can bear a penalty of up to 7 years. The reference to summary conviction is to conviction by a magistrates court rather than a crown court which carries a higher sentence The sentencing guidelines are not the same thing at all. the fact that you might not have got a sentence of more than 12 months is not the criteria.

You can of course write and point out all these issues and the fact that a shoplifting offence in the uk would not normally carry 12 months imprisonment but the bottom line is that legally the refusal is justified. unfortunately there is also a lot of political pressure at the moment to reduce the number of students and other long term visitors so UKBA is being very tough at the moment
Customer: replied 5 years ago.
Does it cost money to do the appeal?
Expert:  Senior Partner replied 5 years ago.
No effectively you just write and ask them to reconsider.It is free. You don't really have a formal appeal under the points based system you simply ask for an administrative review. See detail on the UKBA website here:

http://www.ukba.homeoffice.gov.uk/customs-travel/beforetravel/visas/administrative-review/

good luck

Please press accept so I am credited fro my time
Customer: replied 5 years ago.
Relist: Answer quality.

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