Criminal Convictions and Immigration Applications
There have been recent rule changes affecting most immigration applications made after 1 December 2020 under the immigration rules, and those seeking to formalise their immigration status in the UK by making applications for indefinite leave to remain or to naturalise as British citizens will need to look at their personal histories to assess whether past criminal convictions will impact upon the success of their applications. These will be discussed in turn below.
What sort of criminal offences will be considered?
Criminal offences which attract custodial sentences are perhaps the most obvious considerations which will be taken into account when assessing an immigration application; whether such offences will result in mandatory refusals will be dealt with below.
The following non-custodial sentences/out-of-court disposals may also have an adverse effect on an immigration application:-
- Absolute or conditional discharges;
- Fixed penalty notices, penalty charge notices, penalty notices for disorder;
- Cautions, warnings and reprimands;
- Community resolutions;
- Community sentences;
- Detention and training orders;
- Confiscation and forfeiture orders;
- Civil orders;
- Disqualifications from driving;
- Anti-social behaviour orders/civil injunctions/Criminal Behaviour Orders.
Even where minor offences received out-of-court disposals (such as fines, community orders, or suspended sentences), the number of offences and the time frame in which they were committed may lead to refusal where it is determined that the applicant is a ‘persistent offender’.
A person may be considered a ‘persistent offender’ if, even though the offences may have been minor or received non-custodial or out-of-court disposals, there have been a series of offences committed in a short time-frame, are serious or have escalated in seriousness, or there has been a long history of offending so that it is considered that a ‘clear disregard of the law’ has been demonstrated.
Where it is determined that an applicant is a ‘persistent offender’, there will be a consideration as to whether the public interest would be served by refusing the application. This will be balanced against the applicant’s right to the private and/or family life they have established in the UK.
Disclosure of criminal records
The guidance is clear about whether you need to tell the Home Office about previous offences, no matter how long ago or where they occurred. The guidance states the following:-
“Immigration applicants are required to disclose all offences and consequent penalties both in the UK and overseas, in addition to other relevant information about their conduct, character and associations. Application forms make clear to applicants where they must disclose this information and that failure to declare it may lead to refusal of that application.”
There are clear warnings that failure to disclose this information is likely to be considered as a false representation or deception, which will lead to refusal.
Some immigration applications now require criminal record certificates from overseas, which are discussed in this article on our website. They are not required for applications for indefinite leave to remain or to naturalise as a British citizen.
Indefinite leave to remain
The relevant guidance entitled ‘Grounds for refusal – criminality’ was published to reflect the December 2020 policy changes in respect of how previous criminal convictions will affect most immigration applications.
Broadly the approach taken by the Home Office to the impact of criminal convictions on an application for indefinite leave to remain is based upon the length of the sentence imposed, the harm caused by the offending, and how the offending reflects on the applicant’s character and the desirability of the applicant remaining in the UK in respect of the public interest and/or the threat to national security.
Note also that where there has been imprisonment the Home Office will also make a consideration of whether the person should be deported.
Mandatory refusals on grounds of criminal offences
An application will be refused where:-
- The offence received a sentence of imprisonment of at least 4 years;
- The sentence was between 12 months but less than 4 years, and less than 15 years have passed since the end of the sentence;
- The sentence was less than 12 months, and less than 7 years have passed since the end of the sentence. Note that where a sentence of 12 months exactly has been imposed it will fall into the previous category;
- The applicant has been convicted of or admitted an offence which received a non-custodial sentence or out-of-court disposal (see above) less than 24 months before the date of decision.
Discretionary refusals on grounds of criminal offences
Even if the offences do not meet the above thresholds for mandatory refusal, the following considerations will be taken into account in considering whether to refuse the immigration application as an exercise of discretion. The guidance states that they will ‘normally’ be refused where:-
- Their conduct (including non-custodial or out-of-court disposals), character or associations mean it is undesirable for the applicant to remain in the UK, or they represent a threat to national security;
- Their offending has caused serious harm;
- They are a persistent offender.
Note also that where it is determined that the offending has caused serious harm, or where the person is a persistent offender, the Home Office will make a consideration as to whether the person should be deported.
EEA citizens – applications for settled status or indefinite leave to remain
There are more complex considerations for EEA nationals in relation to past offending, as it involves questions of when the EEA citizen came to the UK, before or after the end of the withdrawal period on 31 December 2020, and also whether the conduct or offences occurred before that date. A future article will deal with these distinctions.
Naturalisation as a British Citizen
Applicants for Naturalisation as a British Citizen will need to look at their personal histories to assess whether there have been any events in their past which may impact on their ability to meet the ‘Good Character’ requirements, see the guidance here.
It is important to remember that naturalisation is granted ‘by discretion’, therefore a criminal record does not immediately mean that an application to naturalise will be refused. It is important to note that all convictions (in the UK and from overseas), whether or not they are ‘spent’ under UK law, must be accurately disclosed or there may be a refusal for attempted deception or dishonesty.
Once again considerations about whether an applicant does not meet the ‘good character’ requirement’ because of previous criminality are based upon the length of the sentence imposed, the harm caused by the offending, and how the offending reflects on the applicant’s character and the desirability of the applicant remaining in the UK in respect of the public interest and/or the threat to national security.
Length of sentence
The guidance states that the ‘good character’ requirement will not be met, and an application to naturalise will be refused if the applicant received (as set out in the guidance):-
- a custodial sentence of at least 4 years
- a custodial sentence of at least 12 months but less than 4 years unless a period of 15 years has passed since the end of the sentence
- a custodial sentence of less than 12 months unless a period of 10 years has passed since the end of the sentence
- a non-custodial sentence or out-of-court disposal that is recorded on their criminal record which occurred in the 3 years prior to the date of application
However, in the case of non-custodial sentences and out-of-court disposals, if a person was convicted within 3 years of submitting the application, but more than 3 years have passed on the date the application is decided, the application must not be refused solely on this basis.
However, where there are other issues of concern, previous offences may be considered relevant when considering good character as a whole. It is the whole sentence imposed by the court that counts, not the time served by the applicant.”
Note that where the guidance says ‘unless’ certain periods of time have passed since the end of the sentence, what this means is that an application should not be refused just because of this particular criminal conviction. However, as is suggested above, the seriousness of the offence will be considered and the circumstances of the offending will be looked at, to determine the applicant’s good character ‘as a whole’.
The nature of the offence will also be considered, in relation to the harm it has caused, balanced by how long since the offence occurred, the circumstances of the offence, and whether or not there has been demonstrable rehabilitation. The criteria in relation to persistent offending will also be considered.
Note that all of the sorts of offences listed above, even the most ‘minor offences’ such as driving offences, should be disclosed and should be addressed, providing any circumstances relating to the offences or conduct.
Consideration of offences committed overseas will also be assessed in respect of whether the offence would not be unlawful in the UK, but will also take into account whether the conduct indicates that the applicant is unwilling to obey the law. Further, even where an applicant has been acquitted of an offence abroad this should be disclosed and the circumstances explained, as the guidance says that an acquittal is ‘persuasive’ but ‘not conclusive’ of good character.
Other considerations – criminality
The ‘good character’ considerations in a naturalisation application will also assess other types of criminality or suspected criminality. This would include where an applicant has been sought for extradition to another country, where there has been ‘suspected’ criminal activity, ‘reliable information’ of the applicant’s involvement with gangs, the extent of an applicant’s ‘connection’ or association with known criminals, and whether there is ‘reliable information’ that the person has benefitted from the proceeds of crime and has received funds of ‘questionable origin’.
Contact our Immigration Barristers
As can be seen, failure to properly present any of the above information in an application for indefinite leave to remain or to naturalise as a British citizen can seriously impact upon the application and result in refusal.
For expert advice and assistance with a UK visa application, contact our immigration barristers in London on 0203 617 9173 or complete our enquiry form below.