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Criminal Record Checks for Investors and Entrepreneurs in Practice

Following on from our previous article here, the Home Office has now introduced a requirement for anyone applying for entry clearance to the UK as a Tier 1 (Investor) Migrant, a Tier 1 (Entrepreneur) Migrant, or an adult dependant of such a migrant, to include with their application an overseas criminal record check for every country in which they have lived for more than 12 months at any time over the previous ten years.

The full implications and practicalities of this new requirement will become clearer with the passage of time; however it seems likely that the provisions will be extended to other categories of applicant in the not too distant future. It therefore seems appropriate to discuss some of the initial “teething” problems that are quickly becoming apparent.

First, on a purely practical level it is necessary for applicants to identify which country or countries they need to obtain a certificate from. Whilst for many people the answer is likely to be fairly obvious, for others it may be more complex. For example a person may have lived in a succession of countries for continuous periods of more than a year, in which case they may need to provide several certificates. In an extreme case an applicant may need up to 10 different certificates. Alternatively, if an applicant has not lived in any one country for more than 12 months at a time they may not need to provide any certificates. Whether such an applicant is more rather than less likely to have some form of criminal history making their exclusion from the UK conducive to the public good is not addressed by the current guidance.

Secondly, once any relevant countries have been identified it is necessary to go through the relevant application process in each country in order to obtain an appropriate criminal record check. If more than one certificate is needed it is necessary to coordinate the applications in light of the anticipated response times and periods of validity as the Home Office Guidance states that certificates “… will only be considered valid if they have been issued within 6 months of the visa application or within the expressed validity period of the document, whichever is the shorter.”

The application process is different for each country as indicated in further Home Office Guidance here, and it is at this stage that the Kafkaesque nature of the requirement begins to become clear.

Take, by way of example, Darius – an Iranian national who requires a certificate from Hong Kong on the basis that he lived there continuously between 2006 and 2011. He has not lived there since and, as an Iranian national, requires a visa before returning to Hong Kong. Darius must apply to the Hong Kong Police Force for a Certificate of No Criminal Conviction. Although in theory it is possible for him to apply to the Hong Kong police by post (with fingerprints meeting their requirements) the reality appears to be very different. The Hong Kong Police Force will only process an application for a certificate if it includes “… a letter from the relevant Consulate / Immigration Authority / Government Authority which contains his or her name and clearly indicates that the production of a certificate is required.” The Home Office Guidance relating to Hong Kong clearly states that Darius will need a letter from the British Consulate General in Hong Kong – which can only be obtained by attending an appointment in person at the Consulate and bringing a copy of the UK visa application to that appointment. The Consulate has indicated that the UK visa application must already have been submitted and paid for before the appointment.

How then is Darius supposed to obtain, or even apply for, an overseas criminal record check in Hong Kong? It may be that Darius is able to submit his application on the basis that he has been unable to obtain a certificate as the Home Office Guidance includes reference to the possibility of the requirement being waived. It says:  “If you are unable to obtain a certificate, for example because the country does not produce such documents or because of any other reasons, you must provide a letter which details your attempts to obtain a certificate and confirms why this has not been possible. You should submit this letter with your other supporting documents when you apply. UKVI will consider your explanation against the situation in those countries and decide whether to waive the requirement. If UKVI concludes that it is possible for you to obtain a certificate but you have failed to do so then you will be asked again to provide a certificate.”

Thus Darius would need to include a letter setting out, at the very least, a letter detailing the above. It may be that an Entry Clearance Officer would decide to waive the requirement – but this is far from clear. If the requirement is not waived, Darius risks his application being refused under paragraph 320(2A) of the Immigration Rules.

If Darius has been living in Iran continuously (whether throughout the previous 10 years or just since leaving Hong Kong in 2011) he will also have difficulty obtaining a criminal record check from his home country. The Home Office guidance for Iran merely states: “Iran has no criminal record register and conviction information is not available”. In light of the above Guidance, and the risk of a refusal, it seems clear that an Entry Clearance Officer should waive the requirement for Iran. Although the Guidance says this is required it would probably be unwise for Darius to make any attempt to obtain a certificate in Iran as if any such information is provided he risks a potential 10 year ban on any future entry clearance applications on the basis that it had been fraudulently obtained.

All of which brings into question the lawfulness of the requirement. Nowhere in the Immigration Rules does it say that a Tier 1 migrant requires a criminal record check. There is a general ground of refusal in paragraph 302(2A) for “Failure, if required to do so, by a person seeking entry to the United Kingdom to provide a criminal record certificate from the relevant authority in any country in which they have been resident for 12 months or more, in the past 10 years.” This merely begs the question whether Darius has been required to provide such a certificate.

The only information that suggests Tier 1 Applicants, as a class, are required provide such a certificate is in the associated Guidance. Yet in the case ofR (on the application of Alvi) v Secretary of State for the Home Department [2012] UKSC 33 the Supreme Court held unanimously that this was unlawful: “… any requirement which, if not satisfied, will lead to an application for leave to enter or to remain being refused is a rule … [which must] be laid before Parliament.”

Although the Appeal regime referred to in that decision no longer exists, the statutory provision under which the Immigration Rules are made has not changed. It may well be that Darius does not actually need to apply for a criminal record check at all; however the practical reality for the present is that any application without relevant criminal record certificates, or detailed explanations for their absence with appropriate evidence, is highly likely to be refused as Entry Clearance Officers are much more likely to follow Home Office Guidance than a decision of the Supreme Court.

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