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Andrew
Andrew, Barrister
Category: UK Immigration Law
Satisfied Customers: 28
Experience:  Over 10 years specialist expertise in all aspects of Immigration Law.
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I live with my Wife in the USA. I am a UK Citizen, she is

Customer Question

I live with my Wife in the USA. I am a UK Citizen, she is Japanese. We got married in the UK and have a UK Marriage Certificate.

We are planning on moving to the UK and are planning on her getting a settlement visa based on our marriage (We've been married for 3 years). We both work in the USA, and intend to work in England. Our move is dependent on me getting a job.

Two months ago she received a DUI (Conviction was "Operating a Motor Vehicle while visibly impaired") Sentencing is yet to occur. Maximum sentence is 90 Days in jail, some community service and fines, but actual sentence will likely be community service and fines with probation.

QUESTION:
1. Are there any issues with obtaining a UK Settlement visa for my Wife in light of the recent DUI conviction in the States?
2. Can you provide detailed advice on the steps we should take to move forward with the application process?

We understand that the maximum penalty in the UK for this type of offence is 6 Months in prison, so it seems like it is not an automatic visa application denial.

Any additional information you can share would be appreciated.
Submitted: 6 years ago.
Category: UK Immigration Law
Expert:  Andrew replied 6 years ago.

Andrew :

Hello and thank you for your question.

Andrew :

1. It will be important that you disclose this on the application form for entry clearance as a spouse. It potentially gives rise to a general ground of refusal under the immigration rules but I would concur that it is unlikely to result in any mandatory refusal. There is the possibility that it will be raised as a discretionary general ground of refusal, but you will be entitled to appeal to an independent tribunal in the UK and ask the judge to exercise their discretion differently.

Andrew :

2. There is a uk visas website that provides detailed information on the application process

Customer:

What about the clause that states " the applicant does not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974."

Customer:

This seems to be a recent addition, April 6th 2011?

Andrew :

what is the clause?

Customer:

the applicant does not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974.

Customer:

If the conviction is unspent, they it looks like we cannot get the settlement

Customer:

We think it takes 7 years for it to become spent

Andrew :

I don't think para. 281(i)(b) would apply to you as you've only been married 3 years

Andrew :

It would be 281(i)(a)(i) and (i) or (iii) or (iv) or (v) or (vi)

Andrew :

281 (i) (a) is alternative to (b)

Customer:

We were looking at 287 (b) (v)

Customer:

Since I am living in the USA, I assume I'm not considered currently settled and present in the UK

Andrew :

but 287 (b) (v) says:

Andrew :

Requirements for indefinite leave to remain for the spouse or civil partner of a person present and settled in the United Kingdom


287. (a) The requirements for indefinite leave to remain for the spouse or civil partner of a person present and settled in the United Kingdom are that:



(i) (a) the applicant was admitted to the United Kingdom for a period not exceeding 27 months or given an extension of stay for a period of 2 years in accordance with paragraphs 281 to 286 of these Rules and has completed a period of 2 years as the spouse or civil partner of a person present and settled in the United Kingdom; or


__(b) the applicant was admitted to the United Kingdom for a period not exceeding 27 months or given an extension of stay for a period of 2 years in accordance with paragraphs 295AA to 295F of these Rules and during that period married or formed a civil partnership with the person whom he or she was admitted or granted an extension of stay to join and has completed a period of 2 years as the unmarried or same-sex partner and then the spouse or civil partner of a person present and settled in the United Kingdom; or


__(c) was admitted to the United Kingdom in accordance with leave granted under paragraph 282(c) of these rules; and


__(d) the applicant was admitted to the UK or given an extension of stay as the spouse or civil partner of a Relevant Points Based System Migrant, and then obtained an extension of stay under paragraphs 281 to 286 of these Rules and has completed a period of 2 years as the spouse or civil partner of the person who is now present and settled here; or


__(e) the applicant was admitted to the UK or given an extension of stay as the unmarried or same-sex partner of a Relevant Points Based System Migrant and during that period married or formed a civil partnership with the person whom he or she was admitted or granted an extension of stay to join and has completed a period of 2 years as the unmarried or same-sex partner and then the spouse or civil partner of the person who is now present and settled in the UK; or


__(f) the applicant was admitted into the UK in accordance with paragraph 319L and has completed a period of 2 years limited leave as the spouse or civil partner of a refugee or beneficiary of humanitarian protection who is now present and settled in the UK or as the spouse or civil partner of a former refugee or beneficiary of humanitarian protection who is now a British Citizen.


(ii) the applicant is still the spouse or civil partner of the person he or she was admitted or granted an extension of stay to join and the marriage or civil partnership is subsisting; and


(iii) each of the parties intends to live permanently with the other as his or her spouse or civil partner; and


(iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and


(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and


(vi) the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application; and


(vii) the applicant does not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974.



(b) The requirements for indefinite leave to remain for the bereaved spouse or civil partner of a person who was present and settled in the United Kingdom are that:


(i) (a) the applicant was admitted to the United Kingdom for a period not exceeding 27 months or given an extension of stay for a period of 2 years as the spouse or civil partner of a person present and settled in the United Kingdom in accordance with paragraphs 281 to 286 of these Rules; or;


__(b) the applicant was admitted to the United Kingdom for a period not exceeding 27 months or given an extension of stay for a period of 2 years as the unmarried or same-sex partner of a person present and settled in the United Kingdom in accordance with paragraphs 295AA to 295F of these Rules and during that period married or formed a civil partnership with the person whom he or she was admitted or granted an extension of stay to join; and


(ii) the person whom the applicant was admitted or granted an extension of stay to join died during that period; and


(iii) the applicant was still the spouse or civil partner of the person he or she was admitted or granted an extension of stay to join at the time of the death; and


(iv) each of the parties intended to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership was subsisting at the time of the death; and


(v) the applicant does not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974.

Andrew :

I don't think any of that applies

Customer:

So since we are both outside of the UK (Me being British), we can apply for settlement under 281 (i)?

Customer:

So should she enter the UK as a visitor and apply from within? Or apply from the US before leaving?

Andrew :

you would meet the criteria in 281(i)(a)(i) as a British national

Andrew :

Could I ask that you click accept so that the money you have paid does not all remain with the site

Customer:

Yes, can you continue to answer my questions?

Andrew :

She would need to apply from the US before leaving

Customer:

Do I need a job offer, or somthing tiying me back to the UK before she can apply?

Customer:

Or can she apply anytime?

Andrew :

Once of the requirements is to show that you as a couple can maintained eachother without recourse to public funds. It will be assessed on the evidence before the ECO at the time of the decision

Customer:

What does ECO stand for?

Customer:

Also, the form does ask about her criminal record. Does she need to wait untill probation is complete in the US to apply, or can she apply now?

Andrew :

Technically speaking it refers to the position you would find yourselves in on arrival but it will be important that you provide all the evidence you rely upon to the ECO. It would no doubt help to have an offer of a job but your prospects of obtaining a job would also be relevant if not

Andrew :

Entry clearance officer

Andrew :

I don't think she needs to wait, but she does need to give full and frank disclosure as to the situation regarding the conviction and this will be continuing until she receives a decision. She may well be invited to attend the Embassy for an interview

Andrew :

http://www.ukvisas.gov.uk/en/howtoapply/wheretoapply/unitedstates

Customer:

So in summary, your opinion is that we should be OK to have settlement granted, it's not 100% (We might have to appeal), but we could apply now, before I receive a job offer. From you experience, can you comment on the likelyhood of having to appeal?

Andrew :

This is a link for further information about the application process that you you will need to complete

Andrew :

I could not say what the chances are without seeing the evidence that you present with the application. You would certainly need to satisfy maintenance and accommodation requirements.

Andrew :

Much depends on the evidence and your means. She will also need to satisfy the english language requirement

Customer:

Do you mean Maintenance = Financial? We'll have healthy savings to show

Customer:

Thank you, XXXXX XXXXX accept

Andrew :

I would suggest that you secure employment first and give the your best shot first time

Andrew :

Kind regards XXXXX XXXXX wish you all the best

Customer:

If we apply now and it's denied, is it harder the second time round?

Andrew :

You will need to address the points upon which it was refused previously but it should depend upon the evidence submitted at the time. In practice, I think it does make a difference. Plus it is an expensive process.

Andrew :

I would lastly refer you to this guidance

Customer:

OK thank you

Andrew :

http://www.ukvisas.gov.uk/en/howtoapply/infs/settlementguide

Andrew and other UK Immigration Law Specialists are ready to help you

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