DOMESTIC VIOLENCE, IMMIGRATION LAW AND - Rights of Women

Seeking Refuge?
DOMESTIC VIOLENCE, IMMIGRATION LAW AND ‘NO RECOURSE TO
PUBLIC FUNDS’ – IMPORTANT UPDATES July 2012
What does this Update cover?
1. The new Destitution Domestic Violence (DDV) concession (replacing the Sojourner
scheme, which ended on 31/3/2012)
2. The new Immigration Rules 1 on family migration, introduced on 9/7/2012. The main
changes are:
a. The probationary period for spouses and partners (and many other categories of
migrant) has been increased from 2 to 5 years (‘the 5-year route’)
b. Discretionary Leave to Remain has been abolished and replaced by a new ’10-year
route’ to settlement for those claiming a right to leave to remain on grounds
of article 8 ECHR and/or the ‘best interests of the child’ under the UN Rights of
the Child and section 55 Borders, Immigration and Citizenship Act 2009. Only
those who can show they are destitute will have access to public funds.
c. The 14-year Long Residence rule has been abolished and been replaced by a new
20-year rule, under which applicants will not be granted ILR, but will be admitted to
the new ‘10-year route’ to settlement.
d. The requirement for women applying under the Domestic Violence rule not to have
any unspent criminal convictions has been retained.
e. There are additional, complicated requirements on criminality applying to those
entering the 10-year route, and those challenging removal and deportation.
f. A new more difficult English language requirement has been introduced for all
settlement (ILR) applications.
3. Changes in the law relating to criminal convictions
1. New ‘Destitution Domestic Violence’ three months’ access to public funds for
women eligible to apply under the domestic violence rule
On 1 April 2012 the UKBA introduced a new type of short-term leave to remain, lasting 3 months
and giving access to public funds, for women eligible to apply under the Domestic Violence rule,
but needing safe accommodation and financial support for a short period until that application is
granted. This scheme replaces the Sojourner pilot scheme, which closed on 31 March 2012 (see
page 14 of the Legal Guide).
1 These new Rules were announced in the Statement of Changes in Immigration Rules HC 194, published 13/6/2012
and due to come into force on 9/7/2012, amending part 8 of the current Immigration Rules and introducing a new
Appendix FM on family migration. All these changes are now in the consolidated Immigration Rules, on the UKBA
website at http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/
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Women who qualify to apply for indefinite leave to remain under the main Domestic Violence rule 2
and who need to find safe accommodation and financial support while they prepare their
application and wait for the UKBA response, may now notify the UKBA of their intention to apply
under the Domestic Violence rule, and receive a decision granting 3 months’ leave to remain
with recourse to public funds. The UKBA call this route ‘Destitute Domestic Violence’ (DDV for
short).
What is the DDV process?
This process of ‘notification’ (applying for recourse to public funds while you apply for indefinite
leave to remain under the domestic violence rule) is done by downloading form DDV from the
UKBA website, completing the very basic information required on it, and emailing it straight back to
the UKBA email address given on page 2 of the DDV form. There is no fee. The form can be
returned by post, but this will delay the UKBA’s response. The UKBA will then make a quick check
of their files to make sure that the applicant either currently has, or has had, leave to enter or
remain as a spouse. Once that is confirmed, the UKBA will promptly reply with a letter granting 3
months’ leave to remain with recourse to public funds, plus a further letter requiring the applicant to
apply for a biometric residence card. That process is envisaged to take only a further couple of
days.
You can find the DDV form, UKBA policy and UKBA ‘frequently asked questions’ at
http://www.ukba.homeoffice.gov.uk/visas-immigration/while-in-uk/domesticviolence/#header2
The UKBA letter makes it clear that the applicant is eligible to apply for public funds as soon as she
receives her biometric residence card. It is hoped that women’s refuges will feel confident to admit
to the refuge a woman holding this letter, since the letter shows that the woman will be able to
make a claim for benefits within a day or two.
This new ‘Destitution Domestic Violence’ leave to remain lasts 3 months. Applicants are expected
to make their application for indefinite leave on form SET(DV) under the Domestic Violence rule as
soon as possible. The UKBA’s target time for dealing with those applications is 20 days. The
intention therefore is that applicants may be granted indefinite leave to remain well within that three
months’ period.
Some women may not be able to make the main SET (DV) application straight away. They may
need time to collect evidence, (from their doctor, social worker, women’s support centre, etc). They
or their children may be too upset from having to flee from the violence to be able to deal with such
complicated procedures so soon. It is very important that whatever the circumstances the
application on SET(DV) is made before the expiry of the 3 months’ ‘Destitution Domestic Violence’
leave to remain, to remain lawfully in the UK while a decision is made on the main application. The
UKBA asks applicants in this situation to inform them quickly that there are or may be difficulties
making the application. If this may be your situation and the evidence is still not available near the
end of the three months, you are strongly advised to make the application within the 3 months’
period, with a letter attached explaining what evidence is still awaited, and what the reason is for
the delay – and the UKBA may in exceptional circumstances agree to delay making the decision
until all the evidence is received.
Make sure you meet the requirements before you apply for DDV
This new Destitution Domestic Violence scheme is only open to women who will qualify to
apply for indefinite leave under the Domestic Violence rule.
2 See section D-DVILR in Appendix FM, at
http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/app-family-members/victim-ofdm/
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Women who have never had a spouse visa, or whose marriage did not break down during that
visa, or whose marriage broke down for a reason other than domestic violence, cannot use that
scheme, and will be refused very quickly. And as well as being refused that 3 months’ leave to
remain, such a woman may well be at risk of investigation by the Immigration Service, or even of
having any existing leave to remain curtailed – because by making that DDV application she will
have informed the UKBA that she is no longer with her husband. So women who do not qualify to
apply for indefinite leave under the main Domestic Violence Rule should not use this ‘notification’
form.
Women not eligible to apply under this scheme (such as women who have a student or work visa,
or whose own visa shows that they are dependent on their husband’s student or work visa, or who
have no leave to remain at all) but who face destitution if they flee from their violent partner are
strongly advised to obtain legal advice on their immigration status before making any approach to
the UK Border Agency or applying to Social Services.
I have been granted my 3 months’ DDV with access to public funds. What happens when I
apply for benefits?
When you receive your letter from the UKBA stating that you can access public funds you should
present this as soon as possible to your local jobcentre plus (for benefits) and/or local authority (for
housing). It is strongly advised that you seek advice and support from a women’s support
organisation such as Women’s Aid to help you do this. If you wish to enter a refuge, refuge support
workers should assist you.
Important for women with young children: there is a new Domestic Violence Job seekers
Allowance Easement rule which means victims do not have to be actively seeking work for an
agreed period if they experienced DV in the previous 26 weeks. This new benefits provision started
on 23 April 2012. This is extremely important, as women fleeing domestic violence in families
where the husband is the claimant for child benefit will not be eligible for income support until she
can transfer the child benefit to her own name – which might take up to three months - but without
this new rule she would run the risk of being refused Job-Seekers Allowance on the ground that
she is not available for work.
What if my SET(DV) application is refused? (see pages 9-10 of the Domestic Violence Legal
Guide).
The law on this has not changed.
• If you still had leave to remain (whatever type of leave to remain, including the DDV 3
months leave to remain) when you submitted the SET(DV) form, and you submit your
appeal within the time limit for appealing, you will have a right of appeal to the First-tier
tribunal (immigration and asylum chamber). You will continue to be lawfully present in the
UK, and not liable to removal, until the appeal process is complete.
• If you did not have any leave to remain at the time you made the application (including if
you did have 3 months’ leave under the Destitution Domestic Violence policy but did not
apply on SET(DV) until after the 3 months had expired), you will not have any right of
appeal against the refusal decision, and you remain liable to removal. You will receive a
right of appeal against any later decision to remove you from the UK, but that may be
many months in the future 3 . You may be able to challenge the refusal by judicial review.
You should seek legal advice as soon as possible.
What if the UKBA refuse my Destitution Domestic Violence (DDV) application?
3 Daley-Murdock, R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 161
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You should seek immigration legal advice as soon as possible.
• If you still had current leave to remain on a spouse visa when you applied for DDV, you
would have a right of appeal, and you should seek advice as soon as possible.
• If you applied for DDV whilst you were on some other type of visa (e.g. as a dependent
on your partner’s work visa), you would have a right of appeal. But the appeal would not
have any legal merit, because this application is only open to those who are on, or have
had, a spouse visa. Whatever the reason for your refusal, there may be some other
application you could make to the UKBA. But, by having applied for leave under the DDV
concession and been refused, you would now no longer have any leave to remain unless
you make an in-time appeal.
• If you applied under the DDV concession at a time when you had no leave, you will have
no right of appeal, and will remain liable to removal. When the UKBA eventually make a
decision to remove you, you will then have a right of appeal.
2. New Immigration Rules on family migration from 9 July 2012: important changes
for women fleeing domestic violence but who do not fit the Domestic Violence rule,
and for other women with no recourse to public funds
The new Immigration Rules have introduced major changes in the requirements for all categories
of family migration, and set out in detail what the UKBA believes to be reasonable requirements for
an applicant to qualify for leave to remain under art 8 ECHR (an application based on the
applicant’s rights to private and family life) and/or ‘best interest of the child’ as set out in the UN
Convention on the Rights of the Child, brought into law in section 55 Borders, Immigration and
Citizenship Act 2009 (an application to remain in the UK with a child whose best interests it is to
remain in the UK).
The UKBA clearly intends these new Rules to set clear limits on who will, and who will not, be
granted leave to remain on the basis of family life under article 8 ECHR or the ‘best interests of the
child’. In its press statement on 11 June, the UKBA said:
The new Immigration Rules will also unify consideration under the rules and Article 8 of the
European Convention on Human Rights, by defining the basis on which a person can enter or
remain in the UK on the basis of their family or private life. (Our emphasis)
However it is very important to note that the rights protected by art 8 ECHR and the UN
Convention on the Rights of the Child must be considered in each individual case and in
accordance with the law. This means that, despite the UKBA’s desire to introduce limitations on
how art 8 ECHR or the rights of a child can be taken into account, individual applicants may still be
entitled to leave to remain even if they do not meet the UKBA’s ‘requirements’ now contained
in the Immigration Rules.
From 9 July 2012, there will be 2 main ‘routes’ to settlement for family migrants.
• The 5-year route
Those family migrants who are not overstayers and whose current leave to remain permits them to
switch into a family migration category, or who can make a valid entry clearance application as a
spouse, partner, child, elderly dependent relative, complying with all the requirements of the new
family migration Rules will be granted leave to remain in the ‘5 year route’. The new ‘eligibility’
requirements include very specific and onerous requirements as to income, as well as a list of
‘suitability’ requirements. These are summarised below. Applicants will be given leave to remain for
30 months (2 ½ years) with no recourse to public funds. They will then have to apply for a further
period of 30 months’ leave. After 5 years they will be eligible to apply for indefinite leave to remain.
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This 5-year route applies to all future applicants granted leave to remain as a spouse, civil
partner, and unmarried partner, including those seeking entry for the first time who have been
in relationships for over 4 years. The probationary period for spouses/civil
partners/unmarried partners is therefore 5 years.
Eligibility: the new minimum income threshold is £18,600 for sponsoring the settlement in the
UK of a spouse or partner, fiancé(e) or proposed civil partner, of non-European Economic Area
(EEA) nationality, with a higher threshold for any children also sponsored; £22,400 for one child
(£18,600 for the partner and £3800 for the child) and an additional £2,400 for each further
child. This cannot include any income of the applicant or any third party support, but can
include the savings of both sponsor and applicant, (which can include financial gifts from 3rd
parties) so long as strict criteria are complied with.
When these applicants come to apply for indefinite leave to remain (ILR) they will have to pass
a new more difficult English language test.
New rules on criminality: all these applicants must satisfy the new ‘suitability’ test (to be
found in paras S-EC and S-LTR in the new Appendix FM).
It is important to note that these requirements are harder to meet than the previous simple
requirement not to have any unspent criminal convictions 4 . Depending on what crime was
committed, the new rules could potentially be used to exclude anyone even if no crimes have
been committed (for example, if a person has on several occasions been arrested but not
charged, or tried for an offence and acquitted on technical grounds, or simply been a person of
interest to the police).
The suitability rules for entry clearance applications state that the UKBA may decide to
exclude someone from the UK on the basis that their exclusion ‘is conducive to the public good’
(in other words, British society is better off without that person) if
• they have been convicted of an offence for which they have been sentenced to
imprisonment for at least 12 months (S-EC 1.4). OR if
• the applicant’s conduct, (including convictions with punishments of less than 12
months), character, associations, or other reasons, make it undesirable to grant them
entry clearance (S-EC1.5).
The suitability rules 5 for in-country applications for variation of leave and indefinite
leave to remain state that the UKBA may decide to exclude someone from the UK on the
basis that their exclusion ‘is conducive to the public good’ (in other words, British society is
better off without that person) if
• they have been convicted of an offence for which they have been sentenced to
imprisonment for at least 4 years (.S-LTR.1.3)
• they have been convicted of an offence for which they have been sentenced to
imprisonment for less than 4 years but at least 12 months. (S-LTR.1.4)
4 Section 139 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 reduced all rehabilitation periods
(periods after which a conviction becomes spent- see part 3 of this Update) for criminal offences. But section 140 of the
same Act provides that immigration and nationality applications are excluded from the rehabilitation scheme, though
some Rules continue to require applicants to have no unspent convictions.
5 These ‘suitability’ requirements can be found in Appendix FM under the ‘partner’ category, at
http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/app-family-members/family-lifeas-a-partner/
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• in the view of the Secretary of State, their offending has caused serious harm or they
are a persistent offender who shows a particular disregard for the law.( S-LTR.1.5)
• their conduct (including convictions of less than 12 months, or which have not in
themselves caused serious harm) , character, associations, or other reasons, make it
undesirable to allow them to remain in the UK. (S-LTR.1.6.)
• the migrant has not failed to comply with a UKBA requirement (such as attending an
interview) (S-LTR 1.7); provided false information (whether knowingly or not (S-LTR
2.2); has unpaid NHS bills of over £1000 (S-LTR 2.3) or failed to provide a maintenance
and accommodation undertaking where requested (S-LTR2.4)
Very important: if a person cannot satisfy the suitability requirements but may wish to stay in the
UK on the basis of family or private life, and/or the best interests of a child, they may nevertheless
be able to apply or be admitted to the ‘ten-year route’ to settlement – see below.
Women applying under the Domestic Violence rule, and women applying under the ‘child
contact rule’ 6 who cannot satisfy the ‘suitability’ criteria only because they have an unspent
conviction may be granted a further period of 30 months’ leave to remain (rather than being
required to enter the 10-year route’ at the beginning).
Additionally, a woman wishing to apply for ILR as a parent of a child in the UK (the current child
contact rule) who cannot satisfy the new more difficult English language requirements may be
granted a further period of 30 months rather than entering the 10-year route.
The ‘10 year route’
Those who do not meet the requirements of the ‘5-year route’ to settlement, but who may
have a basis for remaining in the UK under article 8 ECHR or the ‘best interests of the child’
may be granted 30 months’ leave to remain in the ‘10-year route’ to settlement.
This applies to those who cannot satisfy all the ‘eligibility’ requirements of the 5-year family
migration route, but whose rights to family or private life under art 8 ECHR are nevertheless strong,
or where the ‘best interests of their children’ clearly support the children and the migrant parent
being allowed to stay in the UK.
However, to be granted leave in the ’10-year route’, an applicant must:
• Complete an appropriate form for further leave to remain, and
• Pay an application fee, and
• Meet the ‘suitability’ requirements (see above), and
• Meet the ‘exceptional’ requirements contained in para EX.1 of Appendix FM (see below).
They will then have to apply for a further 3 periods of 30 months’ leave to remain, each time on a
formal application form. All these applications will require an application fee (currently £561 for an
application for further leave to remain and £991 for indefinite leave), with no exceptions for people
who are destitute.
Some people who have no leave to remain (overstayers, failed asylum-seekers) will be allowed to
start on the ‘10-year route’. Those people will be granted leave to remain for 30 months. But if a
person already on the ’10-year-route’ overstays again for more than 28 days, they would have to
start the ‘10-year-route’ all over again.
6 These applications are covered under ‘family life as a parent of a child in the UK’ at para EC-PT in Appendix FM at
http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/app-family-members/family-lifeas-a-parent/
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• The ‘exceptional’ requirements 7
For people applying for leave to remain because they have a child in the UK, that person
must have a ‘genuine and subsisting’ parental relationship with the child, who must be under 18.
The child must either be a British citizen or have lived in the UK continuously for over 7 years. And
it must not be reasonable to expect the child to leave the UK.
For people wishing to stay in the UK on the basis of a relationship with a partner, they must
have a ‘genuine and subsisting relationship with a partner who is in the UK and is a British Citizen,
settled in the UK or in the UK with refugee leave or humanitarian protection, and there are
insurmountable obstacles to family life with that partner continuing outside the UK’.
• What if I have strong family and private life, or a strong claim under the ‘best interests of
the child’ but I don’t fit these new rules?
Very important: it is clear from para EX.1 that not everyone who would have been granted
Discretionary Leave would qualify under these Rules for this 10-year route. This is because of the
very precise way the UKBA have tried to define how strong a person’s art 8 ECHR rights must be
before they will grant leave. In relation to children, the new rules require that ‘it would not be
reasonable to expect the child to leave the UK’. In relation to adults in relationships, the new
rules require that there must be ‘insurmountable obstacles’ to family life continuing outside the UK.
Neither of these requirements fit with how the UK House of Lords and Supreme Court have
analysed family life or the ‘best interests of the child 8 . This means that people with art 8 ECHR
claims, and claims based on having a British child or child with ILR here in the UK, may have a
right under art 8 ECHR and/or the ‘best interests of the child’ which has been upheld in the UK or
European Court judgments 9 , but may have to take legal action (either an appeal to the First-tier
tribunal or a judicial review) to be granted leave to remain. This will be very difficult once legal aid
is withdrawn for immigration cases.
• If I am granted leave in the ’10-year route’ will I be able to claim benefits?
Not everyone admitted to the ’10-year route’ on grounds of art 8 ECHR or ‘best interests of the
child’ will be allowed access to public funds. The UKBA Guidance 10 states than a person given
leave to remain on the 10-year route will only be granted access to public funds if they show they
are destitute. The legal test will be the same as the legal test for asylum-seekers:
A person is destitute if:
(a) They do not have adequate accommodation or any means of obtaining it (whether or
not their other essential living needs are met); or
7 Para EX.1 of Appendix FM at
http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/app-family-members/exception/
8 The legal test for family life with a child in the UK was set out in ZH (Tanzania) v Secretary of State for the Home
Department [2011] UKSC 4, which stated that the best interest of the child must be a primary consideration, which
meant that the best interests of the child had to be determined before considering whether it was proportional to remove
the applicant. The legal test for family life between adults was set out in Chikwamba v Secretary of State for the Home
Department [2008] UKHL 40, and the House of Lords judges explicitly disapproved of any legal test based on
‘insurmountable obstacles’.
9 ZH Tanzania and Chikwamba, see previous footnote
10 The Guidance on public funds is at section 12 of the new guidance on family migration, at:
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/chp8-
annex/overarching_family.pdf?view=Binary
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(b) They have adequate accommodation or the means of obtaining it, but cannot meet their
other essential living needs.
The applicant will have to show destitution as part of her application for leave to remain. This is
likely to be very difficult. The UKBA Guidance believes that it will be ‘extremely rare’ for an
applicant to be destitute. This is because people granted leave under the 10-year route will have
permission to work. If they are granted leave to remain as a partner their partner will be expected
to support them, and the partner will already have access to public funds. The Guidance states that
an applicant claiming to be destitute ‘will need to provide evidence, including of their financial
position, demonstrating that they do not have access to adequate accommodation or any means of
obtaining it (other than from a local authority or charity) or they cannot meet their other essential
living needs (other than from a local authority or charity)’.
• Other important requirements
For all applicants admitted to the ’10-year route’, their applications for indefinite leave to remain
(ILR) must show that they have passed the relevant English language test and have no unspent
criminal convictions (see 2. Important new rules on criminality, below).
However, if someone still has unspent convictions, or cannot pass the language test, they may be
granted a further 30 months’ leave to remain.
special cases:
Those with current ‘partner’ visas (spouse, civil partner, unmarried partner) will continue on
the current ‘settlement route’ to ILR (27 months’ leave followed by an application for ILR). But
anyone applying for ILR after October 2013 will need to show English language to level B1 and not
have any unspent criminal convictions.
Those who have already been granted Discretionary Leave will continue to be dealt with
under that policy through to indefinite leave if they qualify (normally through 2 periods of 3
years’ Discretionary Leave). But anyone applying for ILR after October 2013 will need to show
English language to level B1 and not have any unspent criminal convictions.
Victims of Domestic Violence who would qualify under the existing Rules (have, or have had,
a spouse visa, the marriage broken down during that spouse visa because of domestic violence)
do not face any new requirements. The Domestic Violence rule is now in the new Appendix FM of
the Rules, in section DVILR 11 .
A child born after leave to remain is granted to a parent, who can currently apply for leave in
line with the parent, does not face any new requirements and continue to apply under para 305 of
part 8 of the existing Rules. (There is no specified form on which to apply for leave in line for a
child and the UKBA has no clear procedure for dealing with these applications. To apply for leave
in line for a child the applicant should write a short letter either to the address of the UKBA case
owner who dealt with your own application (the address will be on the letter granting her leave to
remain), or to the UKBA (leave in line), Lunar House, Wellesley Rd, Croydon CR9 2BY, giving the
child’s name, nationality, date of birth, Home Office reference number and provide a photocopy of
her own grant of leave to remain, and an original long birth certificate for the child.)
For those seeking to stay on the grounds of private life alone, the qualifying period for
settlement is 20 years 12 (with some exceptions for those under 18 who have spent at least 7
11 NB at the time of writing, these new rules appear to exclude women who had a spouse visa and then some subsequent
visa before applying under the domestic violence rule. The requirement says ‘applicants whose last visa was a spouse
visa’. However there was no intention to change the rule, and the UKBA have been asked to redraft this para.
12 See Long Residence in part 7 of the Rules, at
http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/part7/
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years in the UK, those under 25 who have spent more than half their life here, and those over 18
who have no social, cultural or family ties with their country of origin).
The 14-year ‘long residence’ application is being abolished, and there will be no grants of
Discretionary Leave to Remain after 9 July.
Allowed appeals and further submissions on grounds of art 8 and ‘best interests of the
child’: A person who was refused and their appeal allowed on art 8 ECHR grounds, or whose
further submissions on art 8 grounds were accepted, will enter the ’10-year settlement route’ but
without being required to pay a fee.
3. Criminal Convictions
• What is a conviction?
For any official application, including any application to the UKBA, applicants are required to reveal
any criminal convictions against them. Remember that this applies to all criminal convictions and
cautions. This means any crime for which you were arrested and cautioned or charged, or
summonsed to a magistrates court by letter, and for which you either pleaded guilty or were found
guilty after a trial. This also applies to driving offences.
The UKBA states:
You must give details of all unspent criminal convictions. This includes road traffic offences
but not fixed penalty notices (such as speeding or parking tickets) unless they were given in
court. [In other words, even speeding and parking offences would be included if you had
been taken to court about them].
Remember that this applies to offences committed as a young person under 18. For these,
the rehabilitation period (time after which the conviction becomes ’spent’) is half the adult
rehabilitation period*. So, if you were found guilty of shoplifting at the age of 16 and the sentence
was a fine, your rehabilitation period would be 6 months from the date of conviction (see below).
Remember that failing to declare a criminal offence to the UKBA amounts to deception,
even if you had just forgotten the incident or did not realise it was a criminal matter. Any application
can be refused on that basis alone. So if you have ever been in trouble with the police, including
the British Transport Police (e.g. for non-payment of train, bus or tube fares) make sure you find all
the paperwork and identify exactly how your case finished, to make sure you do not have any
unspent conviction arising from that event.
• What is an ’unspent conviction’?
The Rehabilitation of Offenders Act 1974 as amended 13 provides that certain criminal offences
would be regarded as ‘spent’ after a specified number of years from the date of conviction. This
means that the conviction no longer has to be declared, and cannot any longer count against the
applicant.
Whether any particular conviction is to be regarded as ‘spent’ is not based on the type of offence. It
is calculated by looking at the length and type of sentence (punishment) imposed on conviction for
13 now amended by the Legal Aid Sentencing and Punishment of Offenders Act 2012 s139, which has
increased the length of sentence which can never be spent to 48 months (4 years)
1. shortened all the rehabilitation periods for sentences lower than that
2. inserted a new section 56A into the UK Borders Act 2007, stating that there is no rehabilitation for
certain immigration and nationality applications.
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the offence. The details are now set out in section 139 of the Legal Aid, Sentencing and
Punishment of Offenders Act 2012:-
• A sentence of over 48 months’ (4 years’) imprisonment is excluded from rehabilitation.
This means it can never be spent.
• A sentence of more than 30 months (2 ½ years) and up to, or consisting of, 48 months (4
years) has a rehabilitation period of 7 years. This means that convictions leading to these
sentences become spent after 7 years from the date of completion of the sentence (including
any licence period).
• A sentence of imprisonment of more than 6 months but less than 30 months has a
rehabilitation period of 48 months. This means that convictions leading to these sentences
become spent after 48 months (4 years) from the date of completion of the sentence (including
any licence period).
• Any sentence of 6 months’ imprisonment or less has a rehabilitation period of 24
months (2 years). This means that convictions leading to these sentences become spent after
2 years from the date of completion of the sentence. *NB for offences committed while under
18 years for which a sentence of 6 months or less is received, the rehabilitation period is 18
months, not half the adult rehabilitation period.
• A fine has a rehabilitation period of 12 months. This means that convictions leading to
these sentences become spent after 12 months from the date of conviction.
• A community order (such as probation or unpaid work) has a rehabilitation period of 12
months. This means a community order becomes ‘spent’ after 12 months from the last day on
which the order is to have effect.
• ‘relevant orders’ including a conditional discharge or a bind-over to keep the peace or be
of good behaviour have a rehabilitation period ending on the last day on which the order
is to have effect. Such convictions become spent after that date. *NB for offences committed
while under 18 years which receive a ‘relevant order, the rehabilitation period is the same as
for adults.
• There is no rehabilitation period for an absolute discharge. This means that it becomes
spent straight away.
Therefore, an unspent conviction is a conviction which:-
• Either, because of the length of sentence, cannot ever be spent. Any offence for which the
sentence was for more than 48 months (4 years) can never be spent.
• Or, is a conviction which can be spent but for which the rehabilitation period is not yet
completed. So, for example, if you were convicted on 1 July 2012 and ordered to pay a fine
(which has a rehabilitation period of 12 months), that would not become spent until 1 July 2013,
12 months later.
If you are unsure as to whether you have an unspent criminal conviction or not and want to apply
for leave to remain, you can contact our immigration law advice line, the details of which are at the
end of this update. You can also check with the lawyer that represented you when you were
convicted (if you had one) or an immigration lawyer.
• What if I need to make an application to the UKBA under the Domestic Violence Rule but
I have an unspent conviction?
You should obtain immigration legal advice, if possible before making any formal application to the
UKBA. Once you find a solicitor or legal adviser you must provide all the details to them, even
about possible offences you are not sure about.
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If you do have unspent convictions, the new rules 14 provide that you will be granted 30 months’
leave to remain rather than indefinite leave.
If you need advice:
Remember that you can telephone the Rights of Women’s immigration and asylum legal
advice line to discuss your application on 020 7490 7689 (telephone) or 020 7490 2562
(textphone) on Mondays between 2pm-4pm and Wednesdays between 11am-1pm.
The law explained in this legal guide update is as it stood at the date of publication. The law
may have changed since then so you are advised to take up to date legal advice. Rights of
Women cannot accept responsibility for any reliance placed on the legal information
contained in this legal guide update. This legal guide update is designed to give general
information only.
© Rights of Women July 2012
14 See para D-DVILR.1.2 in Appendix FM at
http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/app-family-members/victim-ofdm/
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