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Thomas
Thomas, Lawyer
Category: Immigration Law
Satisfied Customers: 7475
Experience:  UK Lawyer holding practising certficate for England & Wales.
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Hello Tom I am about to extend my Tier 2 (General) visa.

Customer Question

Hello Tom
I am about to extend my Tier 2 (General) visa. My problem is that I have 3 fixed penalty notices, one in May, 2011, one in Nov. 2012 and the final one is in July, 2013. The first one is traffic light offence. The second one is driving without insurance. And the third one is speeding (36 miles on a*****. The points on my licence is 12 points and I was supposed to be disqualified with my driving licence. Due to the exceptional hardship for my case, I went to the court for the last one and the court decided to only issue a fixed penalty notice. The exceptional hardship in my case was that I was divorcing during that period (2012) and I did not realised that my insurance was overdue. And also if I were disqualified with my driving licence, this may affect my visa extension and ILR application. I have been lived in the UK for 10 years.
My question is that do I need to discourse all these fixed penalty notices as it is mentioned in the guidance notes that fixed penalty notice does not need to be included. Also, for the last one, is it still be counted as fixed penalty notice? If not, do I need to just include this one or I need to include all three. Would all these offences seriously affect my application for both extension or ILR?
Submitted: 2 years ago.
Category: Immigration Law
Expert:  Thomas replied 2 years ago.
Hi
Thank you for your question and patience, I’m Tom and I’ll try to help you.
Generally, FPNs are not counted as offences for the purpose of extensions/ILR because they are not regarded as criminal convictions.
However, there is a ground on which they can refuse if they consider that it would not be conducive to the public good to grant you an extension or ILR. So, if a person has a great number of FPNs which indicate a pattern of behaviour of not obeying the law. For this reason, I would disclose them all in a side letter and put forward the mitigating circumstance in each cash and particular the details of the hardship that you suffered and which the court accepted.
The FPN given in court would be regarded as a criminal conviction because they are seen as such if given in court rather than accepted upon issue to you. However, they would only be able to reject on this basis alone if you received it witnin the previous 24 months of the date of your application for an extension or for ILR.
So, providing you put forth convincing mitigation and you are able to submit character references for professional persons who can confirm that these are out of character then you should still be fine but I would try and be as carefuly as you can driving around from now on.
My goal is to provide you with a good service. If you feel you have received anything less, please reply back as I am happy to address follow-up issues specifically relating to your question.
Kind regards,
Tom
Customer: replied 2 years ago.

Thanks Tom for your advice.

The last FPN which was issued by court was convicted in July, 2013. I am submitting my application this month. So, it is within 24 month. Providing that I have character references would this be a mandatory refusal?

Also, the first FPN is over three years now and the second one is over two years now. Should I include them in the application form? or should I put them in a side letter? For the last FPN, should I disclose it in the application form or in a side letter? Should I tick yes or no for the criminal record in the application form?

Sorry for bring up so many questions and I am looking forward to your kind help.

Regards

Jun

Expert:  Thomas replied 2 years ago.
Hi,
If the FPN was received at Court because you defended it and it is less than 24 months then it will almost certainly result in a refusal I'm afraid. If it's possible to wait until 24 months have passed until you submit it then you should do so. If not then character references would be using but they would not solve the situation for you.
I would disclose the earlier FPNs in your covering letter simply to proactively deal with any attempt to lump them all in together and call them a pattern of behaviour.
Kind regards,
Tom
Customer: replied 2 years ago.

Hello Tom

Thanks again for your clarification. I went back to check the general ground for refusal. For lLR, there is a timescale if I have convicted of a non-custodial offence, which is two years. within two years it is mandatory refusal. As my visa runs out in Jan. 2015, so, I have to extend it. I am planning to extend my Tier 2 (general) visa this time. I checked the general ground for refusal again for leave to remain, and for Convicted of a non-custodial offence, after 13 December it is Discretionary and need to be considered under character, conduct and associations, persistent offender and serious harm categories. Does this mean that the criteria for leave to remain in this case is the same as the one for ILR when the conviction was more than two years ago (they are all discretionary). So, good character references will help in this case and I wont be refused mandatorily?

Thanks

Jun

Expert:  Thomas replied 2 years ago.
Hi,
Yes, if the conviction is more than two years old then any rejection would be a discretionary one. Which is to say that they would not automatically reject the application but may take the view - based on the specific facts/circumstances - that they should exercise disrection to refuse it.
On this basis, character references can assist sometimes provided that they are from persons of authority who have known you for a sufficiently long time and can give a detailed reference.
Kind regards,
Tom
Customer: replied 2 years ago.

Hi

My conviction is not more than two years. However, for leave to remain, would this 'more than two years' still applies? I checked the document, it seems it is only for ILR and not for leave to remain.

Thanks a lot for your help.

Jun

Expert:  Thomas replied 2 years ago.
Hi,
Yes, it would, it's immigration rule 322(5)(1C)(iv):-
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/370958/20141106_immigration_rules_part_9_final.pdf
Kind regards,
Tom
Customer: replied 2 years ago.

Hi Tom

thanks for this.

I may confuse you or I may be confused. rule 322 (1c) (iv) is for

(1C) where the person is seeking indefinite leave to enter or remain:

As in my case, I am not going to seek indefinite leave to remain, I am only applying for leave to remain under tier 2 (general). would this apply still?

Please check the following document on page 37 to 40, it seems they make a distinction between leave to remain and indefinite leave to remain.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/348115/GGFR_Sec1v18_0_EXT.pdf

Thanks

Jun

Expert:  Thomas replied 2 years ago.
Hi Jun,
Sorry, my mistake. You are correct, if you were to apply for leave to enter not ILR) then he 24 months does not apply and they could only rejected on discretionary grounds.
Tom
Customer: replied 2 years ago.

Hello Tom

Thanks for your reply. In this case, would you know solicitors (better around Lincoln) who can better deal with my case?

Thanks

Jun

Customer: replied 2 years ago.

Do you think in my case, a solicitor will do a great help? I can get character letters. What should I include in the cover letter?

Apart from the cover letter, if I find a solicitor to help me with my application, what will they do for me?

Thanks

Jun

Expert:  Thomas replied 2 years ago.
I will answer at 9 am
Tom
Expert:  Thomas replied 2 years ago.
Hi Jun,
Ideally, you would instruct a solicitor, yes. They will preapre the chracter references in the way that is the most convincing as well as collate all the supporting documents and draft your statement ensuring that you mitigate in the best possible way.
Tom
Customer: replied 2 years ago.

Hi Tom

Do you have anyone around Lincoln you can suggest and also, do you have some examples for the statement and the character references?

It would be much helpful if I can have a look and find someone at this early stage to draft it rather than wait until the appointment with the solicitor.

Thanks

Jun

Expert:  Thomas replied 2 years ago.
Hi,
I'm afraid I'm based in the south and cannot recommend anyone near to where you are.
I also cannot given you statements/character references because this would constitute specific advice and this is a general question/answer website only.
Tom
Expert:  Thomas replied 2 years ago.
Hi
Is there any further information you require?
I just want to ensure that you are satisfied, so please let me know if you have any further queries on the information I have provided.
Kind regards,
Tom

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