UKBA Clarifies Relevance of Fixed Penalty Notices to Criminality Threshold Periods
4 July 2013
We recently wrote to the UKBA's Criminality Policy Team to request clarification of whether an applicant who has received a Fixed Penalty Notice in the 12 months preceding an application for entry clearance under a Tier 1 category might be refused under the general grounds of refusal.
We noted that the Immigration Rules and accompanying guidance were inconsistent on this point. Paragraph 320(18) of the Immigration Rules stated that an application for entry clearance should normally be refused if "within the 12 months preceding the date of the application, the person has been convicted of or admitted an offence for which they received a non-custodial sentence or other out of court disposal that is recorded on their criminal record." While UKBA Guidance RFL10 stated that "examples of non-custodial sentences may include...Fixed Penalty Notices", we viewed this as being restricted to only Fixed Penalty Notices that are related to a conviction, admission of guilt or recording on their criminal record, which is an interpretation consistent with the Nationality Instructions on the relevance of Fixed Penalty Notices to a determination of "good character".
Page 53 of UKBA Guidance - General grounds for refusal Section 1 - v13.0 (valid from 21 March 2013) also suggested that this was the case. It stated, "[r]eceiving [a Fixed Penalty Notice] does not form part of a person's criminal record as their is no admission of guilt. You must disregard them for the purpose of checking if they amount to a conviction for an offence." It then went on to list exceptions, for example, when there are associated criminal proceedings for failing to pay or there are multiple penalty notices.
On 27 June 2013, the UKBA Criminality Policy Team provided the following response:
Your enquiry has flagged up an error in the UKBA Guidance RFL10 which has now been corrected.
You are correct. Under the Immigration Rules 320 (18A) an entry clearance application may be refused if within the 12 months preceding the date of the application, the person has been convicted of or admitted an offence for which they received a non-custodial sentence or other out of court disposal that is recorded on their criminal record
A fixed penalty notice (FPN) does not form part of a person's criminal record and is disregarded. However, if a fixed penalty notice has been referred to a court for non-payment of the fine or if the notice has been challenged by the applicant and subsequently upheld by the court then it is treated as a conviction for the purposes of the criminality threshold periods. Multiple penalty notices, or one or more penalty notices alongside other non-custodial sentences, particularly over a short period of time, will be considered under the character and conduct assessment.