26 Aug Disclosing criminal convictions

On 1 December 2020 the Immigration Rules were amended to place further scrutiny on an applicant’s criminal history. As part of the requirements, a migrant applying for a UK visa, leave to enter and remain, as well as ILR is required to disclose any offences or penalties in the UK and overseas. Failure to do so could be flagged as deception or an attempt to deliberately conceal information, which would lead to a refusal. This also applies to nationality applications.

As per the guidance:

“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.”

In addition, depending on the type of application made, a criminal record certificate may be required.

An application will be mandatorily refused where:

• An applicant has been convicted of a criminal offence in the UK or overseas and they have received a custodial sentence of 12 months or more
• The applicant is a persistent offender showing a clear disregard for the law. This would be a person who has committed a series of offences over a short period of time or someone with a long history of offences. The UKVI will consider whether it would be in the public interest to refuse the application.
• The applicant has committed a criminal offence, causing serious harm

However, there are circumstances in which the UKVI may exercise their discretion. In doing so, they will consider the applicant’s individual circumstances.

If an individual is applying for entry clearance, permission to enter or stay in the UK for less than 6 months (not as a visitor), the UKVI may refuse an application if:

• The applicant has been convicted of a criminal offence in the UK or overseas and they have received a custodial sentence for less than 12 months
• They have been convicted of a criminal offence in the UK/overseas for which they have received a non-custodial sentence or an out-of-court disposal on their criminal record

Where a visitor or a person is seeking entry to the UK for a period of 6 months or less, a mandatory refusal will occur if:

• The applicant has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of less than 12 months (unless more than 12 months have passed since the end of the custodial sentence).
• The applicant has been convicted of a criminal offence in the UK or overseas for which they have received a non-custodial sentence or an out-of-court disposal that is recorded on their criminal record (unless more than 12 months have passed since the end of the custodial sentence).

The UKVI may exercise their discretion in the following scenarios:

• If a visitor or person seeking entry for less than 6 months has been convicted of an offence for which they have received a custodial sentence of less than 12 months, and more than 12 months have passed since the end of the sentence.
• If a visitor or person seeking entry for less than 6 months has been convicted of an offence for which they have received a non-custodial sentence or out-of-court disposal, and more than 12 months have passed since the end of the sentence or issuance of the out-of-court disposal.

Naturalisation applications

When applying for naturalisation, the UKVI will consider as to whether the applicant meets the ‘good character requirement’. According to the guidance:

‘Consideration must be given to all aspects of a person’s character, including both negative factors, for example criminality, immigration law breaches and deception, and positive factors, for example contributions a person has made to society. The list of factors is not exhaustive.’

The UKVI will consider both the negative and positive factors, leaving room for discretion. This means that having a criminal record will not automatically lead to a refusal. However, it could if not disclosed as it would be considered as deception or dishonesty.

The ‘good character’ requirement will not be met if an applicant has received any of the following:

• 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

Where the above sections state ‘unless’ this means that an application should not be refused based on a particular criminal conviction. As stated, the seriousness of the offence will be reviewed, and the circumstances of the offender will be looked at on order to determine the applicant’s good character. This as well as nature and effect of the offence and whether the applicant has shown rehabitilation.

The above also includes ‘minor offences’ such as those relating to driving.

In regards to overseas offences, the UKVI will consider as to whether the particular offence would be unlaw in the UK and whether it shows an unwillingness to comply with the law.

If you have any concerns on how your application may be affected, please do not hesitate to contact us on: 0203 384 3075.