# DUI worries for FLR Spouse Visa



## Bjarkash (Jun 19, 2012)

Please for the love of god someone put my mind at ease, tell me I can get this visa and that something like a stupid wet reckless charge won't stop me from getting to be with the man I love.

I sold my car and all my belongings to pay for our wedding and the visa, I feel like I've gone to a casino and bet all or nothing. 

I have no other priors and no pending convictions and the wet reckless looks to be a 3 month max imprisonment time in the UK, while a DUI is 6 months. I have proof that I completed the education course to regain my license. I don't have proof I've paid the fines because the fines aren't due for like 90 days after I apply for the visa. I suppose if they ask for proof I could send off the fees and request a receipt asap. There was no jail time for my penalty. All I got was a fine, 2 years informal probation, and the 12 hour course which I completed (actually I went above and beyond and completed a 3 month course). The only thing I'm worried about is the infraction date was 12/19/10 but the CONVICTION date was so recent, 6/18/12. It's really all a bummer. Please, has ANYONE gotten a spouse FLR from US to UK with a blip on their record? I will do the proper paperwork and write a cover letter and include all the sentencing documents... I just want to know, is there ANYONE ELSE OUT THERE AT ALL

Who knows someone who got a visa with a dui or wet reckless.


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## 2farapart (Aug 18, 2011)

Before anything else, I'm no adviser and am only interpreting the rules and guidance available on this...

The immigration rules are ambiguous on convictions when it comes to the FLR visa. The form does ask for details, but the form is multi-purpose, and so there is a chance the conviction won't be taken into account at the FLR stage (the immigration rules don't mention criminal convictions under fiancée or FLR visas). *However, unspent convictions ARE taken into account when applying for ILR* regardless of settlement route into the UK. Specifically, Section 287 of the Immigration Rules (UK Border Agency | Spouses and civil partners) state one of the requirements for ILR:


> (vii) the applicant does not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974.


A 'spent period' is a set term of rehabilitation as defined under the Rehabilitation Of Offenders Act 1974. This is set out in the Guide to British Nationality Guide AN. Although pertaining to nationality, the settlement visas all refer to this guide for settlement immigration rules on convictions generally.

The damaging bit is not actually the perceived equivalent jail sentence, but the fact that you were fined on a charge that is not considered by the UKBA as 'minor'. Because you received a fine, the rehabilitation period is deemed to be 5 years from date of conviction. The table on page 16 of the guide sets out the 'spent' (rehabilitation) periods for various types of offence. The 'sentence' column can be more than one option as given in this example in the guide:



> *From Guide AN (page 15):*
> For example: If you were convicted for speeding and received a 12 month driving disqualification and a fine - although the driving disqualification would be considered spent at the end of the 12 month period, the fine would not be spent for 5 years. You should therefore wait 5 years before you make an application for citizenship.


Under this meaning, your charge will be taken into account for an ILR application within the next 5 years. If you're applying under the 'old rules', this means your ILR application date is going to fall sooner than the spent period of the charge. *What I DON'T have the answer to is whether the UKBA, in "taking into account" the offence, will deny a visa because of it.* I'm not sure anyone can answer that because it's going to be based on YOUR circumstances and your entire application. The only advice is NOT to apply for naturalisation until the conviction is spent (but we're talking about settlement visas rather than full naturalisation). The UKBA can disregard minor offences, but as stated on page 15 of the above guide, they do not consider drink-driving and drug-related driving offences as minor in that regard, which means they must be 'spent' in order for them to be omitted from your application.

I'm sorry I can't give you more assurance than this. Even if another applicant pops in with an unspent DUI and successful visa, there's still a chance that their 'whole picture' will differ from yours.  

If I was in a similar position, I think I would consider applying under the new rules that come in on 9th July where the probationary period prior to being able to apply for ILR is 5 years in the UK rather than 2 in the hope the 'unspent' period lapses before your ILR becomes due. This would mean your sponsoring partner needing to demonstrate that they earn £18,600 or have the required savings as stated in the Statement Of Changes guide. Failing that (ie you need to apply under the pre-July 9th rules), it might be worth contacting a reputable adviser or lawyer as recommended by the *Office Of The Immigration Services Commissioner:* People Seeking Immigration Advice: The Office of the Immigration Services Commissioner.


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## 2farapart (Aug 18, 2011)

Were you by any chance under the age of 18 when convicted? If so, there's a possibility that the rehabilitation period will be reduced down to 2.5 years, and that could make a difference in allowing you to apply under the old rules but stave off ILR until the conviction is spent.

(sorry - was too late to edit my last post and I'm still thinking about this)


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## AnAmericanInScotland (Feb 8, 2012)

If you apply and are approved under the pre-9 July rules (a possibility even with the conviction), you may find that continuing to extend your probationary visa until your conviction is spent is the best way to go.

If you apply under the post-9 July rules, you may not get the visa at all because part of the new rules are to use unspent convictions at the door, so to speak.


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## 2farapart (Aug 18, 2011)

AnAmericanInScotland said:


> If you apply under the post-9 July rules, you may not get the visa at all because part of the new rules are to use unspent convictions at the door, so to speak.


I can't find where this is written. I looked and looked through the Statement Of Changes but found no changes mentioned pertaining to convictions and when they're considered. I didn't read the whole thing, but the only mention about unspent convictions I found is again against the ILR. Any pointers on where I can find this? The whole ruling is ambiguous to say the least.

My concern about advising the OP on applying under the pre 9 July rules is that there's a chance the visa_ might _be refused (it depends on how rigorously that particular rule must be applied or whether the ECO has discretion to waive it). In a case where an applicant's funds are already limited, it won't be easy to stump up the cash for a new application later (applications refused on the grounds of a conviction are not refunded). It _is_ a gamble, because they might well say "okay - we'll let it go". 

If I thought I could not meet the new 9th July finance rules, I would take that gamble anyway because there is nothing to lose, but if not, I would apply under the new rules so that the conviction is safely spent before ILR even comes around - *unless there is indeed a change in when a conviction is taken into account* (ie it's moved to the probationary visas rather then the ILR checks).


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## AnAmericanInScotland (Feb 8, 2012)

2farapart said:


> I can't find where this is written. I looked and looked through the Statement Of Changes but found no changes mentioned pertaining to convictions and when they're considered. I didn't read the whole thing, but the only mention about unspent convictions I found is again against the ILR. Any pointers on where I can find this? The whole ruling is ambiguous to say the least.
> 
> My concern about advising the OP on applying under the pre 9 July rules is that there's a chance the visa_ might _be refused (it depends on how rigorously that particular rule must be applied or whether the ECO has discretion to waive it). In a case where an applicant's funds are already limited, it won't be easy to stump up the cash for a new application later (applications refused on the grounds of a conviction are not refunded). It _is_ a gamble, because they might well say "okay - we'll let it go".
> 
> If I thought I could not meet the new 9th July finance rules, I would take that gamble anyway because there is nothing to lose, but if not, I would apply under the new rules so that the conviction is safely spent before ILR even comes around - *unless there is indeed a change in when a conviction is taken into account* (ie it's moved to the probationary visas rather then the ILR checks).


You know, I went through and had a fairly long list of places in the SOI that say the new criminality thresholds will apply post-9 July.

Then I hit *page 35, number 133* and the following points, and OH WOW, the new criminality thresholds will apply even to pre-9 July applications.


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## 2farapart (Aug 18, 2011)

I *think* this might be a different thing. 

Look at the Summary Of changes tables starting page 37. On the current transitional arrangements, the 'must be of good character' ruling still only applies to ILR. The new 'criminality' test comes in on the new rules and is itemised as a separate clause to the good character judgement (which is still factored in only at ILR even in the new rules). I don't know for sure, but I don't think the new criminality factor applies in this type of instance. It seems to be something clearly aimed at people like Qatadar where people with a custodial sentence of 4 years or more can no longer wriggle their way out of being deported as easily as they do now.

However, if the OP should incur another DUI, then that could certainly be classed as flagrant disregard for and endanger to the public and could indeed fall smack within the claws of the new criminality assessment.


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## 2farapart (Aug 18, 2011)

As usual, too late for me to edit my own going-on-and-on posts....

It is somewhat relieving to read that the Statement of Intent cites that the rules for each criminality threshold will be defined clearly in the revised immigration rules because right now they're as clear as mud.

However, I don't know if we'll get to see the revised rules in advance of them coming into force, by which time an informed decision might be too late.


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## AnAmericanInScotland (Feb 8, 2012)

2farapart said:


> I *think* this might be a different thing.
> 
> Look at the Summary Of changes tables starting page 37. On the current transitional arrangements, the 'must be of good character' ruling still only applies to ILR. The new 'criminality' test comes in on the new rules and is itemised as a separate clause to the good character judgement (which is still factored in only at ILR). I don't know for sure, but I don't think the new criminality factor applies in this type of instance. It seems to be something clearly aimed at people like Qatadar where people with a custodial sentence of 4 years or more can no longer wriggle their way out of being deported as easily as they do now.


The wording is pretty clear (I've broken it down to make it easier to read, and highlighted the important parts):



> *Those who, before 9 July 2012, have applied for initial or further leave under the rules in force prior to that date will*,
> 
> if they qualify for it, be granted leave under those rules and
> will continue to be dealt with under those rules through to indefinite leave to remain
> ...


Reading down the pages regarding transitional arrangements, the wording continues to make it clear that the new CCD thresholds will apply even to pre-9 July applications and approved visas.

I've also been through this:

http://www.ukba.homeoffice.gov.uk/s...unds-refusing/leave-to-remain.pdf?view=Binary

Which led me to think the OP had a chance pre-9 July as the ECO has some discretion. But not after 9 July-which is why I wrote the OP has a better chance PRE than POST.

But now? :confused2:

The OP needs to read the link I've posted, it's internal guidance for the ECOs regarding refusals, and has a bit in there about unspent convictions.


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## 2farapart (Aug 18, 2011)

The internal guidelines are referring mostly to crimes of a more serious nature with a year or more's custodial sentence and crimes that an offender should be deported for. The only mention of less serious crimes under the new rules repeats the same sort of judgement as used already (and potentially where the Rehabilitation Of Offenders Act might be used)...



> *Criminal behaviour below the CCD threshold*
> When an applicant has been convicted of a criminal offence which does not meet the CCD threshold, you may still refuse leave to remain under paragraph 322(5). For example, the applicant has committed an offence which by its nature or circumstances, suggests that it is not conducive to the public good to let the applicant remain in the UK. Such offences may include (but are not limited to):
> 
>  offences which involve violence
> ...


So a DUI is still discretionary and the only potential problem in the OP's case is the 5-year unspent period. There appears to be no automatic refusal based on an unspent conviction in these internal guidelines (the only mention of 'spent' is that a refusal cannot be given against a spent conviction). Therefore, the crux of this matter is whether an unspent rehabilitation period has a chance of being waivered. Reading the above, it might, depending on the above 5 bullet points and especially the judge's sentencing remarks.


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## AnAmericanInScotland (Feb 8, 2012)

2farapart said:


> The internal guidelines are referring mostly to crimes of a more serious nature with a year or more's custodial sentence and crimes that an offender should be deported for. The only mention of less serious crimes under the new rules repeats the same sort of judgement as used already (and potentially where the Rehabilitation Of Offenders Act might be used)...
> 
> 
> 
> So a DUI is still discretionary and the only potential problem in the OP's case is the 5-year unspent period. There appears to be no automatic refusal based on an unspent conviction in these internal guidelines (the only mention of 'spent' is that a refusal cannot be given against a spent conviction). Therefore, the crux of this matter is whether an unspent rehabilitation period has a chance of being waivered. Reading the above, it might, depending on the above 5 bullet points and especially the judge's sentencing remarks.


I saw that earlier. I saw a lot of things earlier, lol, and it's all starting to blur

I think at this point it's up to Bjarkash what she and her fiance are going to do about this. 

I've looked everywhere for a specific 'these are the criminality rules' document, and can't find one, all I can find are statements like 'must refuse entry when the applicant has unspent convictions', and 'new criminality threshold will apply to applications and approvals pre-9 July.

My eyeballs feel twisted! 

@Bjarkash, good luck, please keep us posted, I'm sorry I couldn't have been more help


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## 2farapart (Aug 18, 2011)

AnAmericanInScotland said:


> I've looked everywhere for a specific 'these are the criminality rules' document, and can't find one, all I can find are statements like 'must refuse entry when the applicant has unspent convictions', and 'new criminality threshold will apply to applications and approvals pre-9 July.


I know. 

The Statement of Intent states that the new immigration rules 'will' be clear on what falls under which criminality threshold, and I think the word 'will' is key here. In other words, we need to have sight of the new immigration rules to understand how exactly this will be applied, but I imagine they're still in the draft/approval stages and we won't get sight of them until July 9th itself - at which point we'll all be proved wrong anyway!


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## AnAmericanInScotland (Feb 8, 2012)

2farapart said:


> I know.
> 
> The Statement of Intent states that the new immigration rules 'will' be clear on what falls under which criminality threshold, and I think the word 'will' is key here. In other words, we need to have sight of the new immigration rules to understand how exactly this will be applied, but I imagine they're still in the draft/approval stages and we won't get sight of them until July 9th itself - at which point we'll all be proved wrong anyway!


Parts of 'Appendix FM' have been published, but nothing on the 'new criminality rules'. I now have so many documents in my folder I can't keep up with all the printing.

But it's too interesting to pass up. I'm becoming so interested in all of this that I'm looking into training as an immigration advisor. It's fascinating. Frustrating, lol, but fascinating.


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## Bjarkash (Jun 19, 2012)

I had previously read ALL of those documents and even looked up the corresponding codes etc etc.... It seems like I can get in since things that would cause them to question my character are generally of a more serious nature... unless DUI's are now being looked upon like that - which IMO is kind of ridiculous BECAUSE 10% of all arrests in the USA are DUI arrests. But I suppose I wouldn't put it past them since their new income requirements exclude a huge chunk of their own people  We'll just try this out and see. I just have the sentencing papers, there are no remarks by the judge or anything like that. Hey at least it's not a full DUI!

I'll definitely keep this updated. It sucks a lot and I'm worried sick about it


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## AnAmericanInScotland (Feb 8, 2012)

Bjarkash said:


> I had previously read ALL of those documents and even looked up the corresponding codes etc etc.... It seems like I can get in since things that would cause them to question my character are generally of a more serious nature... unless DUI's are now being looked upon like that - which IMO is kind of ridiculous BECAUSE 10% of all arrests in the USA are DUI arrests. But I suppose I wouldn't put it past them since their new income requirements exclude a huge chunk of their own people  We'll just try this out and see. I just have the sentencing papers, there are no remarks by the judge or anything like that. Hey at least it's not a full DUI!
> 
> I'll definitely keep this updated. It sucks a lot and I'm worried sick about it


Yes, please do update us. I agree with you that reading through a lot of that leaves a bit of room for hope-so we're hoping


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## 2farapart (Aug 18, 2011)

It's a horrible, worrying thing to go through anyway, without an additional issue casting doubts. Even with perfectly straight forward applications, we lost countless sleep, argued about whether it would be fine or not, and just dreaded the whole thing.

DUIs here are considered fairly serious with the view that, even though as a driver you know you could kill someone, you STILL got into that car and could have killed someone. But there is a difference between someone who vows never to do that again (a once-off stupid mistake) and a person who repeat-offends and endangers the lives of people around them (and therefore is not someone we want on our roads). 

As you say, everything else on paper looks fine. No repeat offence, no other crimes or convictions, the fact that you immediately went back to driving school - and no damning comments from the judge. The only other thing you can do is, as soon as that fine can be paid, pay it. It seems there might be some leeway for senior caseworkers depending upon the conviction (alas, we don't know which). If I was a gambling person, I'd be tempted to put money on you being accepted rather than refused, but we shall see.

Good luck and keep us updated!


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## PrincessBambi41 (Nov 14, 2011)

My husband is here in the UK on a fiance visa. He has a conviction of drink driving from 2008. He didn't serve time but he did receive a ban and a fine. We had no problems applying for the fiance visa, we provided all details of the conviction and the visa was issued quite quickly (within 3 weeks).

We've now applied for the Spouse visa (FLR) and are awaiting an outcome. We declared the conviction again on this application even though it has technically been "spent". It wasn't until later on in the form it mentioned they were only interested in unspent convictions but we thought it best to include it.

Whatever decision you make Bjarkash you must always be completely honest with the UKBA. I've read posts on here by people who said they lied on the form / withheld the true facts and once you get found out there's no going back, you've virtually no chance of being granted a visa.

I wish you all the luck in the world and keep us posted!!

xx


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## GeorgiaPeach18 (Jun 25, 2012)

where on the spouse visa does it say they are only interested in "unspent"??


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## AnAmericanInScotland (Feb 8, 2012)

GeorgiaPeach18 said:


> where on the spouse visa does it say they are only interested in "unspent"??


No-where. 

The only reference to any kind of criminal activity is on the form at part six:

http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/visas/vaf4a.pdf

And in the Guidance notes for part six:

http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/visas/vaf2-8b-guidance.pdf

However, several other UKBA publications do make it clear that unspent convictions can cause a refusal. Too numerous to list links for, but including part 8 and 9 of the immigration rules, in the Statement of Changes, the Statement of Intent, and others, it's quicker to use their search feature and the term 'unspent convictions', the information is a bit of a stomach churner if the applicant has something as serious as a DUI in their past.

However, per PrincessBambi41's post, it's not always an immediate NO. At least pre-9 July. (WHEW!)

Post-9 July is still a bit of an unknown as the wording in some places seems a bit at odds with the wording in others that any unspent conviction is an immediate refusal. 

But there is nothing on any of the spouse visa forms specifically saying they are only interested in unspent convictions-the applicant appears to be asked about both sentenced and unsentenced convictions and/or charges.


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## AnAmericanInScotland (Feb 8, 2012)

GeorgiaPeach18 said:


> where on the spouse visa does it say they are only interested in "unspent"??


I want to clarify that PrincessBambi41 and her husband are applying on a different form than the one you are using; the one they are using is the FLR(M), is a Further Leave to Remain application form, and says in Section 9, Note 3:



> Note 3 Convictions spent under the Rehabilitation of Offenders Act 1974 need not be disclosed. More information
> about the Act is given towards the end of this section


Please *be aware, however, that this is a completely different form than the one you are using*. You are using VAF4, an family migration route application for use outside of the UK. What I posted earlier was for the VAF4-the one you are using.


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## 2farapart (Aug 18, 2011)

It's actually law and not really to do with the UKBA as such. 

UKBA is just implementing the Rehabilitation Of Offenders Act 1974 by stating that 'spent' convictions don't need to be declared in UKBA forms either. No-one is obliged to declare a conviction after it's expired its rehabilitation period (after which time it is considered 'spent'). The rehabilitation period is set at different thresholds for different types of crime and fine/sentence.

Therefore, whether in the guide notes for a particular form or not, the Act still applies and you aren't obliged to declare anything that would now be deemed spent by the definitions of that law. The guide to how the UKBA applies this Act can be found in the UKBA's guide to Naturalisation as a British Citizen: http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/nationality/guide_an.pdf


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## Bjarkash (Jun 19, 2012)

Paid for my visa application on July 4th  Which means we should be under the old rules. My biometrics is on the 9th and we got all the paperwork, shipping that on July 9th as well. We're shelling out the $300 for rush processing.

He had to go back to England today, what a heart-wrenching experience. So difficult to be without your loved one. I wish things were more simple. I'll post in the timeline thread after my biometrics. 

This is the worst part, it really is... the wait


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## AnAmericanInScotland (Feb 8, 2012)

Bjarkash said:


> Paid for my visa application on July 4th  Which means we should be under the old rules. My biometrics is on the 9th and we got all the paperwork, shipping that on July 9th as well. We're shelling out the $300 for rush processing.
> 
> He had to go back to England today, what a heart-wrenching experience. So difficult to be without your loved one. I wish things were more simple. I'll post in the timeline thread after my biometrics.
> 
> This is the worst part, it really is... the wait


Oh yes, the wait is the worst! Congrats on getting it done ahead of the new rules, and hopefully you'll hear something soon after sending off your hard copies. Because you're using the priority processing you might hear something by the end of next week!


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## WestCoastCanadianGirl (Mar 17, 2012)

Bjarkash said:


> Paid for my visa application on July 4th  Which means we should be under the old rules. My biometrics is on the 9th and we got all the paperwork, shipping that on July 9th as well. We're shelling out the $300 for rush processing.
> 
> He had to go back to England today, what a heart-wrenching experience. So difficult to be without your loved one. I wish things were more simple. I'll post in the timeline thread after my biometrics.
> 
> _*This is the worst part, it really is... the wait *_


Truer words were never spoken....


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## Bjarkash (Jun 19, 2012)

Visa issued today


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## WestCoastCanadianGirl (Mar 17, 2012)

Bjarkash said:


> Visa issued today


Congratulations to you!


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## 2farapart (Aug 18, 2011)

Congratulations to you both!!!! 

You've been through the wars with this more than many of us did, so this is great news indeed. I hoped it would be so, but hopes alone aren't good enough and certainly no reassurance, so this is wonderful to hear!


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## Adrenb3 (Oct 30, 2013)

*Help*



Bjarkash said:


> Visa issued today


Bjarkash, is there any way I can message you about your visa situation? I am in the same situation except with a DUI conviction from 7 months ago. I am not sure what I need to include in my package and what the likelihood of getting my visa approved is. We are not married yet but plan to get married in December but I am now wondering if we should go a different route!?


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## Joppa (Sep 7, 2009)

You cannot PM yet as you are new.
Drink-drive conviction only 7 months old must be declared, and while it isn't an automatic fail (it will be for settlement), you have a tough job convincing the Home Office why you should be granted a visa.


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## Adrenb3 (Oct 30, 2013)

Thanks for your reply Joppa. It's really hard to go through this whole process and pay all of the fees when it seems my visa won't be approved in the end.


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