[daveyboy]

Hi there I am about to apply for residence to move to NZ with my partner who is an NZ Citizen, and we have been together for 10 years.

The problem is I have a criminal record from 24 years ago for 'obstructing the police using their powers under the drugs act' from 1984 when I was 19 years old (now 43). It was alleged that I swallowed something when being searched. It is not a record for selling, posessing or taking drugs. I believe I was advised to plead guilty and did so (although I can't really remember). I was given a conditional discharge.

Does anyone with experience know whether this is likely to be a problem? I'm sure I read somewhere that any offence 'relating' to drugs is a big no no.

[IanW99]

Have you looked at http://www.emigratenz.org/forum/showpost.php?p=200091&postcount=3?

Ian

[daveyboy]

Have you looked at http://www.emigratenz.org/forum/showpost.php?p=200091&postcount=3?

Ian

Ah - that was the thing I had read:

We may also decline a person’s application if they’ve ever been convicted of an offence, including immigration, drug and violence offences.

Thanks, my question is therefore, will this be a problem? Technically I suppose mine was a drug offence, although I have not been convicted of possession or using drugs
Does anyone have any experience of how strictly this may be applied?

[Jo Jo]

Hi Daveyboy,

I assume you are applying for a partnership visa?


Here is what the manual says about previous convictions (This is taken from section A5: character requirements. I've highlighted the bits that seem applicable to your situation in bold)

If your application is declined, you can apply for a character waiver. Section A5.25.1 below shows what is taken into consideration when considering character waivers.

http://www.immigration.govt.nz/nzis/operations_manual/

A5.25 Applicants normally ineligible for a residence visa or permit unless granted a character waiver

Applicants who will not normally be issued with a residence visa or granted a residence permit, unless granted a character waiver (see A5.25.1(b) below), include any person who has been:

a) convicted at any time of any offence against the immigration, citizenship or passport laws of any country; or
b) convicted at any time of any offence involving prohibited drugs; or
c) convicted at any time of any offence involving dishonesty; or
d) convicted at any time of any offence of a sexual nature; or
e) convicted at any time of any offence for which they were sentenced to a term of imprisonment (whether the sentence was of immediate effect or was deferred or was suspended in whole or in part); or
f) convicted (whether in New Zealand or not) of an offence committed at any time when the applicant was in New Zealand unlawfully or was the holder of a temporary permit or was exempt under the Act from the requirement to hold a permit, being an offence for which the Court has power to impose imprisonment for a term of 3 months or more; or
g) convicted at any time of any offence involving violence; or
h) convicted at any time during the last five years, of an offence (including a traffic offence), involving dangerous driving, driving having consumed excessive alcohol (including drunk driving and driving with a blood or breath alcohol content in excess of a specified limit) or driving having consumed drugs; or
i) in the course of applying for a New Zealand visa or permit, has made any statement or provided any information, evidence or submission that was false, misleading or forged, or withheld material information; or
j) at any time in a public speech or public comments, or public broadcast, or in publicly distributing or publishing a document:

argues that one race or colour is inherently inferior or superior to another race or colour, or
used language intended to encourage hostility or ill will against any person or group of persons on the basis of colour, race or ethnic or national origins of that person or group; or


k) has been, or is, a member of (or adheres or has adhered to) any organisation or group of people which (at the time of the person's membership or adherence) had objectives or principles based on:


hostility against people or groups of people on the basis of colour, race, or ethnic or national origins, or
an assumption that persons of a particular race or colour are inherently inferior or superior to other races or colours.


l) in support of any application by another person for a New Zealand visa or permit, has made any statement or provided any information, evidence or submission that was false, misleading or forged.

A5.25.1 Action

a) Visa and immigration officers must not automatically decline residence applications on character grounds.

b) Officers must consider the surrounding circumstances of the application to decide whether or not they are compelling enough to justify waiving the good character requirement. The circumstances include but are not limited to the following factors as appropriate:

if applicable, the seriousness of the offence (generally indicated by the term of imprisonment or size of the fine);
whether there is more than one offence;
if applicable, the significance of the false, misleading or forged information provided, or information withheld, and whether the applicant is able to supply a reasonable and credible explanation or other evidence indicating that in supplying or withholding such information they did not intend to deceive the NZIS;
how long ago the relevant event occurred;
whether the applicant has any immediate family lawfully and permanently* (see F4.1.1) in New Zealand;
whether the applicant has some strong emotional or physical tie to New Zealand;
whether the applicant's potential contribution to New Zealand will be significant.

c) In the case of a person covered by A5.25(j) and (k) above, officers must consider, in addition to any relevant matters listed in A5.25.1(b) above, the following:

the length of time since the applicant publicly expressed the views, or was a member or adherent of the group or organisation, and
whether the applicant still holds the views or still belongs or adheres to the group or organisation, and any evidence of a change in views, and
the extent to which the applicant was involved in publishing or distributing the views, or the extent of involvement in the group or organisation, and
the nature of the views, or the nature of the group or organisation.
d) Officers must make a decision only after they have considered all relevant factors, including (if applicable):

any advice from the National Office of the NZIS, and
compliance with fairness and natural justice requirements (see A1).
e) Officers must record:

their consideration of the surrounding circumstances, (see paragraph (b) above), noting all factors taken into account, and
the reasons for their decision to waive or decline to waive the good character requirements.
f)Any decision to waive the good character requirements must be made by either:

a seconded visa officer; or
an officer with schedule 1 delegations.



Good luck.

[thejoz]

IMHO I wouldn't have thought that could count against you. I thought that a conditional discharge meant that you were discharged from getting a conviction!?

I assume that you must have a criminal record though as you said that you have.

Have you done a police certificate? Have you asked the police (in particular ACPO) what they think about it? I'm sure that they could give you a clearer idea where you stand.

Good luck!

[Mrs Pony]

I'm not sure where you're located but just found this for the USA. Not sure if its the same...

I have a police record of a misdemeanor from 15 years ago. Do I declare it on the application?

You must truthfully answer all the questions in Section B which relate to character – one of these is ‘Have you ever been convicted or found guilty of any offence(s) against the law in any country?’


So I would put it in there... if they see that it was YEARS ago.. maybe it won't be a big deal.

[victoria]

The follies of youth that follows eh? The critical word in all this is MAY. Enclose a letter of explanation of the circumstances,you're obvious contrition.the length of time the "offence?" took place.Also if you can get prepared a couple of character refs. from "people of standing" such as those in the church or legal profession etc. It doesn't hurt to give more than ample information.The case worker will not know you so anything that can bring across your good character is a plus. Finally, don't lose sleep on this. A character waiver is applied at decision stage. Last year the fee was $400 and is tagged onto the application fee request. For something so long ago it's unfair that you're paying again for it. Look to the wonderful adventure ahead and treat this as a minor irritation. I hope this is of help to you. Good luck!

[James 1077]

I was under the impression that a discharge meant that you didn't have a criminal record. A conditional discharge simply means that if you don't offend again in x months/years then you are discharged.

I received a conditional discharge for a motoring offence (riding a motorcycle without a helmet) and it didn't appear on my police check.

I may be wrong though - is there a lawyer in the house? :)

[Edited to add that it is recorded as a conviction in your record but does not count as a conviction - thank you Wikipedia - http://en.wikipedia.org/wiki/Conditional_discharge. I would therefore get the police check to see what it says and then add more facts if it shows up]

[Alan]

Why not just get the police check done and see what it says if there's nothing then there is no problem

[daveyboy]

Why not just get the police check done and see what it says if there's nothing then there is no problem

I did a teaching course last year so had to do a check and the offence is still there on the police computer. Legally it is 'spent' and does not need to be declared under UK law unless it is is for a check for people working with children or vulnerable adults.

However then along came the UK freedom of information act which meant you can get a subject access check on your data. So when the NZ immigration asked you to provide an access check as proof of character it actually meant they could use the Freedom of Information Act to indirectly see info which the UK police could not legally release to external bodies!!


It is an interesting question whether the ACPO check includes everything on your record or only those things which are not 'spent'

Again, yes a conditional discharge is not technically a conviction but does appear on th subject access check. (DOesn't the NZ form ask for all arrests and not just convictions?)

Anyway, I'll do a bit of research about the ACPO check and what's included.

[Jo Jo]

AFAIK, you do have to declare it on the application form, whether it shows up in the police check or not. The question about this is as follows:

Have you or any of your family members included in your application ever been convicted or found guilty of any offence(s) against the law in any country?

The question on the EOI can be found here (http://www.emigratenz.org/forum/newreply.php?do=postreply&t=19314).

The police check will, however, prove how long ago your offence was committed, and this will be taken into account.

[daveyboy]

Thanks Jo Jo.

Just spoke to ACPO. The ACPO chack is not the same as the subject access check.

The ACPO check however will not show details of spent convictions - it will just show 'No Live Trace' as opposed to 'No Trace'. Hence the reader will know that there are spemnt convictions but not the details.

Unlike the subject access check which lists everything.