Criminality, criminal record, criminal offences, police cautions, traffic offences & pending prosecutions may cause UK visa refusals
Applicants for UK visas have to meet the specific requirements for their chosen visa category. For example, Skilled worker visa applicant must have a Certificate of Sponsorship assigned to them by their sponsor employer in the UK. Spouse visa applicants need to provide evidence of their relationship with British national or Settled person.
In addition to the visa specific requirements, there are also ‘General’ requirements that visa applicants have to meet irrespective of the visa type they are applying for. One of those additional requirements are the so called ‘General Grounds’ for refusal. Under the ‘General Grounds’ there is a criminality ground sub-category.
It is important to pay detailed attention to those General Grounds and never underestimate the impact they may have on your visa application. At the same time, it is crucial to be truthful in your visa application as otherwise you may get 10-year re-entry ban.
Criminality grounds for UK visa refusal – factors and impact
Under the ‘Criminality’ grounds the Home Office is focused on whether the visa applicant had any criminal offence(s), including ‘out of court disposals’ and/or traffic offences or police cautions, and how they impact on the UK visa application.
The Home Office immigration rules and guidance set out the effect that criminality has on the visa application, depending on the type of criminal offence, the sentence, when it occurred, whether there was serious harm caused, whether the person is a repeated offender, etc. You should remember that spent criminal offences and pending prosecutions also must be disclosed in the visa application.
The criminality factors (depending on what they are in your case), can give ground to mandatory refusal (Home Office caseworker must refuse your application) OR discretionary refusal (Home Office caseworker may refuse or grant your application). We discuss this in more detail further below.
Another key point to remember about criminality, is the duty to disclose it in your visa application even if any offence is already spent and no longer appears on your formal criminal record.
Rationale for criminality grounds in UK visa applications
The rationale behind the General Grounds for visa refusal, including the criminality grounds, is quite simple and logical. They serve as the protective measure not to allow in the UK those individuals who may disrupt the society or cause harm to the public. In a more broader way, it also tests your honesty, as if you decide to hide any of your past criminality, your visa application will not only be refused but you are also likely to get a 10-year re-entry ban due to deception in your application.
From our experience, the criminality grounds tend to appear quite frequently when we assist with visa applications. For this reason we prepared below a short summary of the criminality grounds for refusal. In conjunction with this article you may also find it useful to read our short guidance on how to complete a UK visa application form. If you are applying for a visitor visa, you may also find it helpful to read our article on how to avoid a visit visa refusal.
Can criminal record cause UK visa refusal? – mandatory and discretionary grounds for UK visa refusal
Most visa applicants are not surprised to hear that a criminal conviction or a criminal record may have a negative impact on their visa application and cause visa refusal..
Factors such severity of the offence, whether the applicant is a one-off offender or a repetitive offender, duration of time that passed since the end of the sentence, duration of time between the offences, whether there was serious harm caused, all can influence and change the outcome of an immigration application.
The Home Office decision makers need to follow the immigration rules when making decision on any UK visa application. Depending on the specified factors as set out in the immigration rules, certain criminal offence(s) must result in a mandatory refusal of the visa application. This means that Home Office caseworker is left with no scope to grant the application within the rules (mandatory refusal). In other cases, the immigration rules allow Home Office caseworker for some level of discretion in assessing applicant’s case, so they may either refuse or grant it (discretionary refusal).
For visa applicants it is crucial to understand from the start what criminal behaviour falls under the mandatory ground for refusal and what behaviour falls under the discretionary ground for visa refusal.
Criminal offences and deportation from the UK
Where a person has a custodial sentence and is in the UK, they may meet the threshold for deportation from the UK. In such cases the Home Office must refer the case to Foreign National Offender (FNO) Returns Command for them to consider whether to pursue deportation. A high profile recent example of a ‘Foreign National Offender’ FNO could the tennis legend Boris Becker who was convicted of a criminal offence and is likely to be considered for deportation from the UK. There are many layers of complexity in deportation cases.
In deportation cases when EU nationals are considered for deportation, it also matters when the criminal offence was committed. If it was committed before the end of 2020, the Home Office will need to consider the deportation under the pre-Brexit rules on EU nationals and would have to show that deportation is in the interests of ‘the public good, public health or public security’. The threshold for demonstrating that deportation is in one or more of these interests was generally higher for EEA nationals than the ‘public good’ considerations for deportation of non-EEA nationals. For EU nationals the length and the right to permanent residence in the UK should be considered by Home Office.
If the criminal offence was committed by EU nationals after 2020, the normal rules on deportation will normally apply.
Factors Home Office considers for discretionary criminality grounds
The following, non-exhaustive, list of factors should be considered by the Home Office when assessing whether it is appropriate to exercise discretion:
• whether the person already has immigration permission
• whether the person is making a first-time visa application
• if the person already has immigration permission, did they start offending soon after they arrived in the UK?
• there is more than one instance of criminality and/or offending so that refusal is appropriate on the grounds of persistent offending, or the person should be referred for deportation
• whether the sentence is very short, such as detention at court under Section 135 of the Magistrates’ Courts Act 1980 for a single day
• the length of time passed since the offence was committed, including whether
any other entry clearance or permission has been granted since the offence
• the relevance of the offence to the application
• any ties the person has to the UK
Mandatory refusal of UK visa entry clearance, permission to enter or permission to stay
Mandatory criminality grounds for refusal are listed in the UK Immigration rules.The rules specify circumstances when UK visa application (entry clearance, leave to remain and indefinite leave to remain) must be refused on criminality grounds.
Immigration Rule Paragraph 9.4.1 provide that entry clearance or permission must be refused where the applicant:
(a) has 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
(b) is a persistent offender who shows a particular disregard for the law, or
(c) has committed a criminal offence, or offences, which caused serious harm.
In all the above circumstances the application is likely to be refused automatically.
Discretionary refusal of entry clearance, permission to enter or permission to stay
Discretionary criminality grounds for refusal are listed in the UK Immigration rules. The rules specify circumstances when UK visa application (entry clearance, leave to remain and indefinite leave to remain) may be refused.
Immigration Rules (Paragraph 9.4.3) provide that entry clearance, permission to enter or permission to stay may be refused where the applicant:
(a) 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
(b) has been convicted of a criminal offence in the UK or overseas for which they have received a non-custodial sentence, or received an out-of-court disposal
that is recorded on their criminal record
Visitors and those seeking entry for less than 6 months – mandatory refusals
Immigration Rules (Paragraph 4.4..4) provide that entry clearance or permission to enter under Appendix V: Visitor, or a person seeking entry on arrival in the UK for a stay for less than 6 months, must be refused where the applicant:
(a) 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
(b) has been convicted of a criminal offence in the UK or overseas for which they have received a non-custodial sentence, or received 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
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, you may consider this as a ground for refusal on a discretionary basis under paragraph 9.4.3.(a).
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 you may consider this as a ground for refusal on a discretionary basis under paragraph 9.4.3.(b).
Entry clearance and permission: mandatory cancellation
Immigration Rules ( Paragraph 9.4.2.) provide that entry clearance or permission held by a person must be cancelled where the person:
(a) has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of 12 months or more
(b) is a persistent offender who shows a particular disregard for the law
(c) has committed a criminal offence, or offences, which caused serious harm
Entry clearance and permission: discretionary cancellation
Immigration Rules ( Paragraph 9.4.5.) provide that entry clearance or permission held by a person may be cancelled (where paragraph 9.4.2. does not apply) where the person:
(a) 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
(b) has been convicted of a criminal offence in the UK or overseas for which they have received a non-custodial sentence, or received an out-of-court disposal that is recorded on their criminal record
Mandatory disclosure of criminal record and criminal offences including traffic offences
All applicants are required to disclose their criminal record and their history of criminal offences to the Home Office when applying for UK visas. This includes both spent and unspent convictions. Applicants also have to disclose all relevant information about their conduct, character and associations. Failure to do so could be interpreted as false representation and/or deception, and result in refused application. Applicants should comply with this duty with utmost diligence. Failure to do so may result not only in visa refusal but also cause 10 year ban for deception.
Mandatory disclosure of criminal history and convictions is relevant for the ‘General Grounds of refusal’. However, only certain visa categories require visa Applicants to obtain their criminal record certificates. As an example, the Skilled Workers in health and care, education and social care roles – Appendix Skilled Worker of the Immigration Rules are required to provide criminal record certificates from any country they resided during the most recent 10 years for at least 12 months in total. For most other job categories under the Skilled Worker visa, however, there is no such requirement to provide criminal record certificates. This does not mean that applicants who are not required to provide criminal record certificates may omit their criminal past from the visa applications. It simply means that there is no requirement to provide criminal record certificates to evidence clean record.
EU and EEA citizens and criminality requirement
All EU/EEA citizens who are not under the protection of the European Union (Withdrawal Agreement) Act 2020 and come to the UK after the end of the transition period on 31 December 2020, fall under the criminality General Grounds in the same way as the other foreign citizens.
Leave outside the Immigration Rules application (LOTR)
The only circumstances in which someone having such record could receive entry clearance or ILR would be for exceptional reasons. Succesfull Outside the Immigration Rules application is extremely rare and at the Home Office discretion. They exclude exceptional situations related to family and private life, medical, asylum or protection grounds which are covered in separate guidances.
The exceptional reasons considerations for granting visa applications are used in entry clearance, leave to remain and indefinite leave to remain applications. We talk about that route in more detail on this page.
What are non-custodial sentences and out of court disposals
Absolute and conditional discharges are considered as non-custodial sentences or out-of-court disposals, recorded on a person’s criminal record. The exception to this is where the person is given a conditional discharge but commits a further offence during the period of conditional discharge and is re-sentenced. In such a case you should consider the sentence imposed when the person is re-sentenced.
Fine counts as a criminal conviction and forms part of someone’s criminal record. Fines must be declared and may result in refusal of cancellation.
Fixed penalty notices, penalty charge notices and penalty notices for disorder. They enable the criminal justice system to dispose of certain minor offences without the need for a person to attend court, and do not form part of a person’s criminal record. A fixed penalty notice will not normally result in refusal unless the person has failed to pay or has unsuccessfully challenged the notice and there were subsequent criminal proceedings resulting in a conviction.
Cautions, warnings and reprimands – A caution (simple or conditional), youth caution, warning or reprimand are all examples of an ‘out-of-court disposal’ which are recorded on a person’s criminal record. A reprimand and a final warning are non-custodial sentences and must be treated in the same way as a caution.
Disqualifications from driving – The court will decide how long the disqualification will last, based on how serious they think the offence is. A disqualification from driving can be either in addition to, or instead of, any other sentence (such as a fine). This does form part of a person’s criminal record and counts as a non-custodial sentence for immigration purposes.
What is Persistent offending
A persistent offender is considered to be a repeat offender who shows a pattern of offending over a period of time. This can mean a series of offences committed in a fairly short timeframe, or offences which escalate in seriousness over time, or a long history of minor offences for the same behaviour which demonstrate a clear disregard for the law.
When considering whether a person is a persistent offender, the Home Office must consider:
• 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
• whether they have shown a particular disregard for the law
What is Serious harm
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.
An offence may have caused serious harm even if the punishment imposed for the offence would not normally lead to an application being refused.
If you have criminal offence and want to apply for UK visa
If you have a criminal offence and want to apply for a UK visa, Indefinite Leave to Remain or British Citizenship, you would need to carefully study the immigration rules and guidance to assess what are your chances of success. As you could see above, there are mandatory and discretionary grounds for visa refusal, and you need to establish which of them apply in your case. Then you need to check if perhaps if you could delay your application until sometime later, possibly you may fall under the discretionary grounds and this way increase your chances of successful application.
You may also wish to seek advice from an immigration lawyer who will help you in assessing your circumstances and putting together a cover letter explaining your case to the Home Office.