Criminality, Serious Harm & Immigration Decisions
When making an application for entry clearance or leave to remain (permission to stay) in the UK, migrants must meet various suitability requirements and must show that their application does not fall for refusal or cancellation under the general grounds. The general grounds for refusal are set out in Part 9 of the Immigration Rules. They apply to all applications, though there are some limits in their application to certain routes, such as those under Appendix FM to the Immigration Rules.
This article will address how applications made by applicants with previous offending will be treated in respect of the general grounds for refusal. It will also address the grounds upon which the Home Office can cancel permission to stay for migrants who are already in the UK.
General Grounds for Criminality Prior to 1 December 2020
The general grounds for refusal were changed on 1 December 2020, as part of the government’s major overhaul of the Immigration Rules, ready for the post-Brexit economy. The changes make the Rules more stringent. An overview of the changes can be found in our Knowledge Centre, here.
Due to the new approach, migrants who have criminal convictions, and whose applications were previously granted notwithstanding the general grounds for refusal, could (in theory) see future applications refused or their leave cancelled under the new grounds. We would advise those who may be in this situation to seek legal advice.
Current Grounds for Refusal in Place Since 1 December 2020
Criminality Grounds: Mandatory Grounds for Refusal
There are a number of grounds for refusing applications or cancelling leave on the basis of a criminal conviction. Migrants will need to consider the circumstances of their conviction, their sentence, and any other relevant factors to determine which grounds may apply in their case.
Paragraphs 9.4.1. (refusal) and 9.4.2. (cancellation) are mandatory grounds for refusal / cancellation. Migrants fall under these grounds where:
- They have been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of 12 months or more; or
- They are a persistent offender who shows a particular disregard for the law; or
- They have committed a criminal offence, or offences, which caused serious harm.
Where a migrant falls under one of the above grounds, there is no specified period of time which must have passed before that they no longer apply. Therefore, if a migrant falls under either paragraph 9.4.1. or 9.4.2. The criminality could inhibit an application for a UK visa forever. We would, again, advise those to which this ground applies to seek legal advice on this issue.
Serious Harm
The Guidance on ‘serious harm’ states:
“An offence that has caused ‘serious harm’ means an offence that has caused serious physical or psychological harm to a victim or victims, or that has contributed to a widespread problem that causes serious harm to a community or to society in general.
Where a person has been convicted of one or more violent, drugs-related, racially motivated or sexual offences, they will normally be considered to have been convicted of an offence that has caused serious harm.”
The guidance also confirms that an offence may have caused serious harm even if the sentence or punishment would not result in the application being refused or leave cancelled. Accordingly, the assessment of whether a migrant has caused serious harm is much more holistic. The Home Office will consider the circumstances of the offence, the type of offence, the impact on the victim, any sentencing remarks made by the judge, and any available offender management reports.
Migrants who do not fall under this ground on the basis of serious harm will still need to show that they do not fall for refusal under the discretionary grounds for refusal, set out below.
Persistent Offender
A persistent offender is a repeat offender who shows a pattern of offending over a period of time. Offending which would meet this definition could be a series of offences committed in a short timeframe or offences which have escalated in seriousness. The Home Office guidance sets out that the following factors will be considered:
- the number and frequency of offences committed and the timescale over which they were committed;
- the seriousness of those offences;
- whether the offences have escalated in seriousness;
- any pattern in the offending; and
- whether they have shown a particular disregard for the law.
Ultimately, the Home Office will consider whether the pattern of offending would mean that the public interest would be served by refusing the application.
Short Term Visas
Paragraph 9.4.4. applies to applications under Appendix Visitor or where the migrant is seeking entry for less than 6 months. Under this ground, an application must be refused when the migrant’s custodial sentence was for less than 12 months or when they received a non-custodial sentence or out-of-court disposal, unless more than 12 months have passed since the date of conviction.
Criminality Grounds: Discretionary Grounds for Refusal
Where the criminality referred to in paragraphs 9.4.1. and 9.4.2. would result in a mandatory refusal / cancellation, the grounds set out in paragraphs 9.4.3. to 9.4.5. sets out the discretionary grounds for refusal / cancellation.
Paragraph 9.4.3. (refusal) and 9.4.5. (cancellation) apply where migrants have been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of less than 12 months (contrary to 9.4.1. and 9.4.2. which require a custodial sentence of at least 12 months) or that a migrant has been convicted of a criminal offence for which they have received a non-custodial sentence or an out of court disposal which is listed on their criminal record.
It is interesting that, where a migrant has received a custodial sentence, it does not matter how long ago that took place. Conversely, where a non-custodial sentence has been received, it will only be a ground for refusal for as long as it appears on the migrant’s criminal record. The timeframe for this will, of course, depend on the country in which the offending took place and their rules for how long offences remain on a migrant’s criminal record.
As these are discretionary grounds for refusal, the decision maker is not required to refuse the application. Accordingly, they are able to take other factors into account when deciding whether to refuse the application (or cancel leave) or to exercise their discretion. The guidance states that the Home Office will consider the following factors when making this assessment:
- Whether the migrant already has permission or is making a first-time application;
- When their offending first started if they already have permission;
- Whether there is more than one instance of criminality and/or offending;
- Whether the sentence is very short;
- The length of time passed since the offence was committed;
- The relevance of the offence to the application; and
- Any ties the person has to the UK”
Therefore, the circumstances surrounding the offending, and the migrant’s personal circumstances, are highly relevant.
Non-conducive Grounds
Where a migrant’s criminality does not fall within the criminality threshold above, migrants may still be refused or their leave cancelled where their presence in the UK is not conducive to the public good because of their conduct, character, associations, or other reasons. This is mandatory ground for refusal or cancellation.
Paragraph 9.3.1. and 9.3.2. of the Immigration Rules state:
“9.3.1. An application for entry clearance, permission to enter or permission to stay must be refused where the applicant’s presence in the UK is not conducive to the public good because of their conduct, character, associations or other reasons (including convictions which do not fall within the criminality grounds).
9.3.2. Entry clearance or permission held by a person must be cancelled where the person’s presence in the UK is not conducive to the public good.”
The above Rules have been drafted with a purposefully wide scope. The Rules do not elaborate on when a migrant’s application must be refused or their leave cancelled under this ground. Migrants must instead refer to the guidance, which confirms that a migrant need not have committed a criminal offence to be refused or have their leave cancelled under this ground. The factors that the Home Office will take into account when assessing an application against this ground are as follows:
- the nature and seriousness of the behaviour;
- the level of difficulty we could experience in the UK as a result of admitting the person with that behaviour;
- the frequency of the behaviour; and
- the other relevant circumstances pertaining to that individual.
The guidance also provides a non-exhaustive list of examples of conduct / behaviour which would result in a refusal / cancellation of these grounds which include: threats to national security, engaging in extremism or unacceptable behaviour, serious criminality, associations with terrorism, war crimes, or criminality, crimes against humanity, persons subject to an international travel ban, having previously committed immigration offences, or those who are likely to incite public disorder.
Cases will be considered on a case by case basis and will be assessed on their own merits. Therefore, migrants will need to consider their behaviour and whether it could fall within the scope of this ground. They should consider their circumstances and whether there are any mitigating factors in their case.
Is It Possible to Omit Details Regarding My Previous Offending From My Application?
It is important to exercise candour when dealing with the Home Office. A failure to declare something material in an application could result in an allegation of deception, which attracts a 10-year re-entry ban to the UK.
Contact our Immigration Barristers
For expert advice and assistance in relation to how the general grounds for refusal could affect your visa application, please contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.
This article was co-written by Dr Catherine Taroni and Georgina Griggs.
