New Criminal Record Checks for Tier 1 Investors and Tier 1 Entrepreneurs
The Home Office has today announced a requirement for Tier 1 Investor and Tier 1 Entrepreneur visa applicants to provide overseas criminal record certificates in support of their visa applications.
From 1st September 2015, anyone applying for a Tier 1 Investor visa or Tier 1 Entrepreneur visa will be required to provide details of whether they have been convicted of a serious criminal offence. They will also be required to provide a criminal record certificate from every country that they have lived in for 12 months or more during the previous 10 years.
Family members aged 18 or over travelling with the main Investor or Entrepreneur visa applicant will also be required to provide the same evidence.
Failure to provide the requested evidence will lead to the Tier 1 Investor visa application or Tier 1 Entrepreneur visa application being refused under a new paragraph 320(2A) of the Immigration Rules. Anyone found to have lied about their criminal record may face a mandatory refusal of a future UK visa application for a period of 10 years.
The updated Tier 1 Investor visa guidance states:
From 1st September 2015, if you are applying for entry clearance as a Tier 1 (Investor) or an adult dependant (over 18 years old) of the main applicant in this route, you must provide an overseas criminal record certificate for any country you have resided in continuously for 12 months or more, in the 10 years prior to your application.
You must provide the following specified documents:
• The original certificate, for each country (excluding the UK) where you have resided continuously for 12 months or more in the last 10 years, since aged 18 years old, issued by the overseas authority, and
• If the original is not in English, then you must provide a translated copy of certificate, in line with the requirements set out at: www.gov.uk/certifying-a-document.
A similarly worded provision is to be found in the updated Tier 1 Entrepreneur visa guidance.
The application process for criminal record checks varies from country to country. The Home Office has published guidance on the application process for criminal records checks overseas. Certificates of good character will only be considered valid if they have been issued within 6 months of the visa application.
Applicants who are unable to obtain a certificate, for example because the country does not produce such documents or because of any other reasons, must provide a letter which details their attempts to obtain a certificate and confirms why this has not been possible. The updated policy guidance confirms that UK Visas and Immigration will consider whether to waive the requirement. However, the factors that UKVI will consider when exercising this discretion have not been made clear.
Equally unclear, from the updated guidance at least, are the circumstances in which a criminal record will lead to an Investor or Entrepreneur visa application, or the application of an adult dependent family member, being refused. It is anticipated that only those cases falling within paragraph 320(2) of the Immigration Rules will attract a mandatory refusal and the case-law surrounding the discretionary power to refuse entry clearance on non-conducive grounds in paragraph 320(19) of the Immigration Rules will continue to apply.
For advice and assistance in relation to an application for entry clearance, leave to remain or settlement in the UK as a Tier 1 Investor or Tier 1 Entrepreneur, contact our immigration barristers in London on 0203 617 9173 or by email to firstname.lastname@example.org