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Thomas, Solicitor
Category: UK Immigration Law
Satisfied Customers: 7620
Experience:  BA (Hons), PgDip, Practising Solicitor
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Discretioanry leave, applying ILR

Resolved Question:

I have been living in UK since march 2006. Came here as a student, got married in June 2008 and was given 2 years Spouse visa. We have got one child who was born in september 2009. I was convicted of a criminal offence in court in October 2009 (crime date december 2008) and was given community sentence. When i applied for ILR on the basis of marriage in June 2010, i was given 3 years discretionary leave because of criminal conviction. Can i apply for ILR now or chance to get ILR (no other convictions not even a parking ticket). My visa is expiring in July 2013

Submitted: 4 years ago.
Category: UK Immigration Law
Expert:  Thomas replied 4 years ago.

What was the offence please?

Customer: replied 4 years ago.
Theft from employer
Expert:  Thomas replied 4 years ago.

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:-

You must not have any “unspent” convictions prior to the date of your application. If you received a community service sentence for the convictions then under the Rehabilitation Of Offenders Act the offence would only become spent 5 years after the date of the offence.

Therefore your offence would be spent in October 2014, so you would certainly be able to apply then.

Occsionally the UKBA can overlook one offence if it was not relatively serious and did not speak to bad character, but the problem is that yours is a bit more relevant to character because it is theft and also theft from an employer so a breach of trust as well.

In the circumstances I would advise applying for further leave to remain before you visa expires before applying for ILR once the conviction has become spent in October 2014

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Kind regards,

Customer: replied 4 years ago.


From 13 December 2012 changes were made to the Nationality Instructions that affect anyone applying for citizenship on or after that date.

The main changes deal with criminality and how it is assessed in terms of the good character requirement in citizenship applications. Some of the main amendments are summarised below:

  • Applications made on or after 13 December 2012 which feature a criminal conviction will no longer be assessed against the Rehabilitation of Offenders Act 1974. Instead they will be measured against a new set of sentencing limits.

  • Where an application features a sentence of 4 years or more in prison this can never fall outside a sentencing threshold. Such an application for citizenship will likely be refused.

  • Police cautions will be looked at in determining whether someone meets the good characterrequirement.

  • There will be greater scope to discount some disciplinary military offences when deciding nationality applications from serving and former members of HM Forces.


Please advice

Expert:  Thomas replied 4 years ago.

If you refer to the detailed guidance here you will see at 3.1.1 (box 4):-

You will see that an application should normally be refused where the conviction is less than 3 years old. Therefore you would probably be refused if you applied before October 2012. On this basis therefore you would be eligible to apply for ILR now if you do not have any other convictions or examples of other behaviour which speak to poor character.

Customer: replied 4 years ago.

Thanks. Which form shall i use? Shall i apply for extension of DLR with a covering letter asking for ILR or shall i apply for ILR

Customer: replied 4 years ago.
Relist: Incomplete answer.
Not in detail what to do next and how to
Expert:  Thomas replied 4 years ago.

Sorry for the delay, but we are solicitors with families and you will appreciate that we cannot be in front of our computers 24 hours a day answering questions.

If you are on a spouse visa and wish to apply for ILR then you would have to submit form SET(M) to the UKBA in order to apply for ILR. You will see that this is confirmed here:-

Usually if they decide that you do not qualify for ILR (for whatever reason and I'm not saying that you don't) then they will grant Further Leave to Remain instead of ILR so that you don't have to submit a further application.

Please rate my answer.

Kind regards,


Customer: replied 4 years ago.

Hi Tom,


I am sorry but it asked me to rate the answer you gave and thats the reason i marked it with that.


Now, if you read my first question, it very clearly says that i was given 3 years DLR when i applied for ILR after 2 years of spouse visa. At the moment i am on DLR and not on spouse visa. I can not use SET (M) as this is for applicants applying for ILR after 2 years of spouse visa issued before April 2012.


As i was given DLR because of the criminal record in July 2010 (criminal conviction October 2009), since then the rules have been changed that good character requirements does not take in account the convictions more then 3 years old (non custodial sentences).


Advice needed.

Expert:  Thomas replied 4 years ago.

I would say then that you should apply using form SET(O) and then by ticking "Other purposes or reasons not covered by other application forms" as being the basis on which you are applying.

This is the form you should use for the immigration categories that are detailed and referred to in it, but also for other applications for which there are no other obviously appropriate forms.

You should then enter in the box providing an explanation for why you are using the form and giving a chronology of what has happened in the past.

Please remember to rate my answer.
Thomas and other UK Immigration Law Specialists are ready to help you
Customer: replied 4 years ago.
Thanks. Lets say if they refuse to give ILR, will they refuse the application ow will they give a further 3 years DLR.
Expert:  Thomas replied 4 years ago.

They would be likely to give you further leave to remain.

Please rate my answer now.