Driving offences and Indefinite Leave to Remain

We recently assisted a Turkish national to acquire a Tier 1 (Investor) visa on the basis of making a substantial £10 million investment in the UK. The investment was made within 3 months of arriving in the UK and steps have been taken to ensure that the investment is maintained in the prescribed manner.

This had put our client on a fast-track to settlement, making her eligible to apply for indefinite leave to remain (ILR) after 2 years continuous residence in the UK (as opposed to the 3 or 5 year qualifying period for those who have made a £2 or £5 million investment, respectively). Our client had made careful plans to ensure that she did not spend more than 180 days out of the UK in any given 12 month period, in order to satisfy the continuous residence requirements.

The ultimate objective, as is often the case, is to naturalise as a British Citizen. Once obtaining indefinite leave, our client would be on track to naturalise as a British Citizen after 5 years continuous residence in the UK.

Driving offence Indefinite Leave to Remain

These plans were disrupted, however, when our client was pulled over by the police for driving whilst using her mobile phone.

When applying for ILR, paragraph 322 of the ‘General Grounds for refusal’ apply. Paragraph 322(1C) states that any application for ILR will be refused where the applicant:

(i) has been convicted of an offence for which they have been sentenced to imprisonment for at least 4 years; or

(ii) has been convicted of an offence for which they have been sentenced to imprisonment for at least 12 months but less than 4 years, unless a period of 15 years has passed since the end of the sentence; or

(iii) has been convicted of an offence for which they have been sentenced to imprisonment for less than 12 months, unless a period of 7 years has passed since the end of the sentence; or

(iv) has, within the 24 months prior to the date on which the application is decided, been convicted of or admitted an offence for which they have received a non-custodial sentence or other out of court disposal that is recorded on their criminal record.

You will note that fixed-penalty notices – the most common penalty received for driving offences – is absent from the above list. Fixed-penalty notices are normally disregarded by the Home Office when assessing ILR applications.

Normally, a person found using a mobile phone whilst driving would receive 3 points on their licence and a £100 fine (i.e. a fixed-penalty notice), and the offence would not have an impact on their immigration status.

Unfortunately for our client, she was driving on her Turkish licence (as is permitted for those who have been resident in the UK for less than 12 months). As a result, the police were not able to apply points to her licence and would instead be recorded on her record as an offence equivalent to a non-custodial sentence. As a result, our client may be subject to the paragraph 322(1C)(iv) of the Immigration Rules, which calls for a mandatory refusal where the offence was received within the 24 months prior to applying for ILR.

In effect, our client’s ability to settle in the UK will now be delayed by a further year, which is somewhat frustrating given the significant investment made.

Thankfully, our client is in the privileged position where she will still be on track to settle in the UK within her current period of leave. She may also choose to reduce her investment from £10m to £5m given that there is now no additional benefit to maintaining these extra investments.

As immigration practitioners with our clients’ best interests at heart, we always advise clients to be extra careful when driving.

By | 2016-12-14T21:58:23+00:00 May 14th, 2015|1 Comment