JAJ

And in some ways, a caution is worse than a court conviction, because at least in court there is scope for mitigating circumstances to be recorded, even if they still convict.

There are certain circumstances where accepting a caution may better, such as a person in Britain who is a permanent resident hoping to apply for (British) citizenship. But as a general rule, a British citizen should obtain expert legal advice before accepting one.

Anecdotally, many of the people who refuse to accept cautions find that the case is dropped anyway, or the court hasn't got enough evidence to convict. A cynic would suggest that those inexperienced with the justice system are easy targets for police looking to use cautions to improve their "performance".

MB-Realtor

This is well worth watching:-


http://www.youtube.com/watch?v=i8z7NC5sgik

maxrevs

Guys I think we're going off on a tangent here - whilst I could quite happily talk about the merits, or otherwise, of the British Judicial system (preferably over a pint or ten) the simple fact remains when talking about immigration matters it is better to err on the side of caution.

A caution, rightly or wrongly, will show up on a police check. If you fill in, and moreover sign, forms to the contrary immigration are going to take a pretty dim view when, months/years later, you send off the police check with it plain to see. Whilst the offence might not necessarily adversely affect the visa/PR application it is certainly going to delay the process.

JAJ you're right. As of April this year they've changed the forms (landing card) and don't ask about convictions/arrest anymore.

PMM

Hi

Schedule 1 of the application does.

JAJ

Doesn't render one inadmissible, in itself.

Ron Liberman

Personally, I agree with you.

The problem is, if there is an equivalent indictable offense in Canada, all CHC London have to do is find that the applicant is inadmissible under Regulation 36(2)(c) for "committing an offense outside Canada ...". No actual conviction is required under this section. So, by adopting the easy way out, and failing to go to Court to fight their case, the applicant may create a situation where they are refused a visa, even though their case was never tried in Court.

The offense here would be battery. Seeing CIC seem to be very sensitive to situations involving domestic violence, it seems to me it would be best to declare it, and to prepare the "for information only" rehabilitation request in case they ask for it.

JAJ

If no actual conviction has been imposed, is there any real proof that such an offence was committed?

We have already noted the lack of legal safeguards over the caution process, which is wide open to trickery or bullying.

Ron Liberman

Exactly .. that is why I agree with you that the applicant is not inadmisible. The wording of Regulation 36(2)(c), in my view, is the root of the problem. The onus is on the applicant to demonstrate he is not inadmissible. The Caution it can be argued, amounts to an admission of guilt, and the applicant then has to refute that. So the question can be turned around i.e. what evidence does the applicant have that he/she did not commit the crime despite admitting to it? It will presumably be very hard to prove that bullying and/or trickery occurred.

JAJ

There are a few methods with which one could try to approach this issue:

- ask the local police force for a copy of the records related to the incident and caution. If these no longer exist, is there any real proof that the caution was properly administered (or ever administered?). Or that the incident was anything other than the most trivial in nature.

- obtain a letter from a good criminal law practitioner in the United Kingdom outlining the shortcomings of the caution process. Notably the fact that there is no provision for an incorrectly or illegally administered caution to be reviewed later on, and that there are concerns that those who sign cautions often do not understand the nature of a caution (police often tell people "it's just a warning").

- assuming there is no equivalent of the caution system in Canada, one can point out that the standard of justice does not reach a level that would be acceptable in Canada.

- after 5 years, the caution should no longer appear on a police check (as far as I know).

wbexpat

I think this is good advice.

I wrung (wrang? wringed?) my hands for MONTHS about a minor matter from my youth during which I was _sure_ I had accepted a caution. Well, erm, bollocks basically. My wife's mate is a copper and she told me a couple of things.

First, it's true that in accepting a caution you basically accept the charge.

HOWEVER, there's a bit of a pallaver involved for the police to caution you. For example, a senior officer needs to hand out said bollocking, you get a receipt or some such paperwork.

None of this happened to me and hey presto my record was clear when I got my police report back for PR application.

Now, when I filled in my PR where it said "have you ever been detained..." I put "yes" because I had been detained. However, in the "details" section I wrote "in a minor matter involving a theft to which I was neither charged nor convicted". Which was true. But a lot less incrominating than saying "I was arrested and accepted a caution".

So perhaps - PERHAPS - and if you check carefully you might be at liberty to say you were "detained for a short while in the matter of an altercation to which no charges were brought".

There is a fine line here. You have to be truthful when you fill in the form. However, UK plod are fairly good at being assertive and sometimes that leaves people like you and me convinced we are public enemy #1 when in reality they are pi55ing themselves laughing at us in the tea room. So check your paperwork, check your rights and ALWAYS get proper advice.

I hope that helps. Good luck.

wbx

tinytears

WOW, thank you all so much there is some fabulous advice and some very interesting reading.

I will pass everything on to my colleague.

Once again, thank you so very much.

tarek

sorry but just a Stupid question : is that mean the police caution is an oral caution not written caution or what is a police caution?

MB-Realtor

Details about Cautions here:-


http://www.homeoffice.gov.uk/police/powers/cautioning/

tarek

Thank you MB-Realtor

Rubie

- after 5 years, the caution should no longer appear on a police check (as far as I know).[/QUOTE]

The rules changed on this a couple of years ago - ANY police record will stay on your file for life or until you reach 100 years old . This change happened after the Soham murders where police had been found to have deleted crucial records - the result was sledge hammer to crack a nut approach.

A caution older than 5 years will not appear on the new certificates issued by ACPO but....... the certificate will not declare your record as clear either. I believe it would say NO LIVE TRACE rather than NO RECORDS/NO TRACE. This will probably make any immigration officer request a full subject access request where the caution/arrest/old conviction will be on full spectacular view.

Following on from other comments:

Just because you have received a caution does not automatically mean you are inadmissible to Canada, it simply means you have to clarify with them whether the events that led to your caution are considered an offence in Canada. I believe that on some CHC forms the question asked is not whether you have been convicted of an offence but have you ever committed an offence.

A caution is an admission of guilt (rightly or wrongly) so I guess the best policy for anyone in this situation, is to declare it and get it cleared using the 'For Information Only' application which doesn't cost a penny but takes a bit of effort getting the paperwork together. It worked for my OH for a caution that was less than 5 years old and means peace of mind for our emigration plans in the future.

Rubie