My client has completed 6 years’ DLR (2 grants of 3 years) which was first granted prior to 09 July 2012. In April 2018 she received a criminal conviction: Community Order (unpaid work).
It appeared that the client was not eligible to apply for ILR because of the ‘general grounds’ of para. 322(1C) i.e. because she has received a non-custodial sentence within the last 24 months, so an application for limited leave was submitted instead.
The Home Office has now written to say that they are considering the application as an application for ILR because she has completed 6 years’ DLR. There is no mention of the criminal conviction in the letter. My client has been given 14 days to pay the extra fee of £1,356 for an ILR application, and the letter states that the application will be rejected if it is not paid.
My concern is that the client could pay the extra fee but still be refused ILR, and then she would then have to pay the higher IHS as well. The total financial loss to my client would be £1,856 !
I cannot see how my client will be granted ILR ? Has anyone had a successful case in these circumstances ?
If she is not eligible for ILR then surely the Home Office must consider the application that has been submitted, and cannot reject it ?
Did she inform them of her criminal conviction?
The conviction was disclosed on the application form vinny, and also in my covering letter.
Viny I presume that 322 would apply to ILR as an Asylum seeker as well?
Unfortunately, the Discretionary Leave Guidance isn’t clear to me at the moment on which criminal thresholds (if any) applies for settlement under the transitional arrangements for discretionary leave granted prior to 9 July 2012.
If the Rehabilitation of Offenders Act 1974 applies, then the Community Order sentence may be spent after 12 months. However, from April 2018 to now is less than 12 months?
Probably requires more research!
Thank you Vinny (I quoted 322(1C) in my covering letter which was submitted with the application).
With regard to the transitional provisions and criminality, the API on DL is indeed unclear. We do of course also have an IDI for those whose DLR was not granted after an unsuccessful asylum claim (‘Chapter 8 Transitional Provisions…’) which states at para. 3.3.2:-
“Consideration must be given to the General Grounds for Refusal when considering an application for further Discretionary Leave”.
When applying for ILR after 6 years I can’t see how an asylum-seeker granted DLR would (potentially) be treated more favourably than someone who had not claimed asylum?!
It seems too much of a (financial) risk for my client to pay the additional fee for consideration of ILR.
Well, my client has decided to take a gamble and pay the extra fee for consideration of ILR. I will update this thread with the outcome in due course…