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Thomas
Thomas, Solicitor
Category: UK Immigration Law
Satisfied Customers: 6261
Experience:  BA (Hons), PgDip, Practising Solicitor
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I applied for ILR on 25/09/2012 after having spent 5 years

Customer Question

I applied for ILR on 25/09/2012 after having spent 5 years in the UK on Tier 1 (General) visa. 6 months passed and my application hasn't been processed yet, however that's not an issue I want to inquire about. On 28/03/2013 I received a letter from the DVLA informing me about a driving offence. Apparently there was a speeding offence some time _after_ I applied for ILR, so I earned 3 penalty points but as it was a hired car the information didn't reach me in time and the situation got worse - penalty increased to 6 points (failure to identify driver?), there was a hearing in the Magistrate Court, of which I haven't been aware, so now I am preparing to make a statutory declaration.

The questions are
1) can this speeding offence lead to my ILR being rejected (given that the offence happened after my application had been submitted)?
2) what would be the best action plan for me?
3) do I need to notify the UK Border Agency of this development as soon as possible?

Thank you
Submitted: 1 year ago.
Category: UK Immigration Law
Expert:  Thomas replied 1 year ago.
Hi

Did you not receive the fixed penalty notice?

If not, where was it sent?

When did the hearing happen?

When did you apply for ILR?

Tom
Customer: replied 1 year ago.

Hi,

I applied for ILR on 25/09/2012.

The offence had presumable been committed sometime between November 1 - 4, however I didn't receive any notice about it. I had hired a car for 4 days at Sixt, and probably DVLA contacted them but I've never heard about it.

The hearing happened on 25/03/2013, that's the way I learned about the offence: a few days later I received the [first and only] letter from the DVLA:

"Our records show that on 25/03/2013 you were convicted of a driving offence, but either you did not produce your driving licence or only produced part of your driving licence to the Court for your offence to be endorsed (recorded). As your licence has not been endorsed you are required to send it to us with the enclosed reply slip. This will enable us to record the endorsement details on your driving license. A pre-addressed envelope is enclosed."

So I phoned the DVLA, then the Court, and learnt some details of this story by phone.

I am going to go to the Court next week to make a statutory declaration, and while I expect to be able to reduce the number of points from 6 to 3, it shouldn't help me much with my ILR application.

I'd like to understand where I stand with my ILR application, and what course of actions it is best to folow now.

Thanks

Expert:  Thomas replied 1 year ago.
Hi

Thanks for your patience.

In order to apply for ILR you have to be of “good character” in the same way that you have to be if you are to apply for naturalisation. Please refer to the following link:-
http://www.ukba.homeoffice.gov.uk/britishcitizenship/eligibility/goodcharacter/

You must not have any “unspent” convictions prior to the date of your application. You will also note that this does not include fixed penalty notice unless they were given in court. So, presently you would not meet this requirement and the UKBA would be entitled to reject on the basis that you did not “have” good character.
If you are to attend court to submit a statutory declaration confirming that you did not receive the fixed penalty notice because it was a hire care in order to get the points reduced then technically the conviction would still have been received at Court. However, if the UKBA were to reject on this basis then you might be able to appeal on the basis that although the conviction was technically received at Court it would not have been were it not for the fact that it was hire car and consequently made it not possible for you to receive the fixed penalty notice.
You would have to argue that it would only have been an FPN if you received it as you normally would. You might get some sympathy on appeal with this and it might go in your favour.
You are generally considered to be under a duty to update the UKBA of a change in circumstances, which this would probably constitute but if you are still attempting to sort out the conviction then you would probably be able to argue that you did not wish to give a partial update and preferred to give a full update once your attendance at court has altered the situation.
If you do not have any other convictions and are otherwise of good character then I would be pretty confident that either determination upon application OR on appeal would go your way and you would still get ILR.
Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE or above if you are satisfied that you have received the correct legal advice (even if it is not the answer you wanted to hear), otherwise I do not receive any credit for answering your question.

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If you wish for me to provide you with further guidance on any question you may have in the future then please submit a further question to the board requesting me either by my profile or by marking your question. “FAO Tom”.

Kind regards,


Tom
Thomas, Solicitor
Satisfied Customers: 6261
Experience: BA (Hons), PgDip, Practising Solicitor
Thomas and 2 other UK Immigration Law Specialists are ready to help you
Customer: replied 1 year ago.

Hi Tom,

Thank you for your answer. Could you please clarify a couple of things?

You mentioned that I must not have any unspent convictions prior to the date of my application. Does it make any difference that my application had been submitted on 25/09/2012, while the hearing for my conviction happened 6 months later?

You also mentioned that I am generally considered to be under a duty to update the UKBA of a change in circumstances. Would you suggest I should update the UKBA immediately after submitting a statutory declaration when my penalties have been cleared for a short while - if I understand the process correclty - until a new hearing has been held? Or I had better wait until the new hearing has been held (and 3 penalty points given again) and inform the UKBA of the offence only then? I just assume that waiting for the new hearing can take a while (possibly you can advise how long it normally takes?), so should I inform the UKBA while waiting or it would be better to wait and inform at the end of the process?

It is possible that I do not understand the process very well, hope you can correct me if my questions make little sense.

Thanks

Expert:  Thomas replied 1 year ago.

Hi

 

I will answer at 1130

Expert:  Thomas replied 1 year ago.
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Customer: replied 1 year ago.

Thank you for your clarification. I have just rated the original answer.

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