If you plan to make an application for any type of UK immigration application, you must disclose any criminal convictions you have had. This includes the UK, your home country, and any other country. This blog post covers the different types of convictions and penalties which you should be aware of and how they may impact your visa application.
Do I Have to Disclose Convictions?
No matter which immigration application you plan to make, everyone is required to disclose all offences and consequent penalties both in the UK and overseas, as well as 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. The question generally comes in the following wording:
At any time have you ever had any of the following, in the UK or in another country?
A criminal conviction
A penalty for a driving offence, for example disqualification for speeding or no motor insurance
An arrest or charge for which you are currently on, or awaiting trial
A caution, warning, reprimand or other out-of- court penalty
A civil court judgment against you, for example for non payment of debt, bankruptcy proceedings or anti-social behaviour
A civil penalty issued under UK immigration law
The reason this question appears is due to Part 9 of the Immigration Rules, which enables the Home Office to refuse or cancel applications to enter or stay in the UK on the basis of criminal or non-conducive grounds.
What are criminal grounds?
Mandatory Refusal
Paragraph 9.4.1. of the Immigration Rules requires that any application for entry clearance or permission to enter or stay in the UK must be refused if the applicant:
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
is a persistent offender who shows a particular disregard for the law; or
has committed a criminal offence, or offences, which caused serious harm.
Discretionary Refusal
Paragraph 9.4.3. of the Immigration Rules requires that any application for entry clearance, permission to enter or permission to stay may be refused 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
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
What If I'm Only Seeking to Visit the UK for a Short Stay?
Prospective visitors to the UK planning to stay for less than 6 months are subject to slightly different rules.
Paragraph 9.4.4. of the Immigration Rules requires that any application for entry clearance or permission to enter under Appendix V: Visitor, or attempts to seek entry on arrival in the UK for a stay for less than 6 months, must be refused 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
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
What is a Custodial Sentence?
A custodial sentence is a judicially imposed punishment usually reserved for the most serious offences and involves a period of imprisonment. In the UK, there are generally four types of custodial sentence: suspended sentence; determinate sentence; extended sentence; and life sentence.
What is a Non-Custodial Sentence?
A non-custodial sentence is a judicially imposed penalty which normally involves a fine, discharge, or community service.
I Was Disqualified from Driving in the UK or Overseas. Does This Count as a Criminal Conviction?
Disqualification from driving in the UK generally counts as a non-custodial sentence (unless paired with other offences), and does not count as a criminal conviction for immigration purposes.
What if I Was Convicted of an Offence Abroad which is Not Considered Criminal in the UK?
The Home Office considers offences committed overseas in broadly the same way as within the UK. This is true even where the overseas offence does not have a direct UK equivalent. Generally, a conviction for an overseas offence which is not recognised in the UK (for example, homosexuality) cannot be the sole basis on which an application is refused.
What if I Was Convicted of an Offence Abroad but Was Later Acquitted?
If you were found guilty of a criminal offence but later acquitted, the Home Office will not count this as a conviction. However, the circumstances which led to your charges being brought may be relied on to refuse your application on non-conducive grounds.
What If I am Awaiting a Trial or Sentencing?
If you are awaiting a trial, your prosecution is pending, or you are yet to be sentenced for an offence you have been found guilty of, the Home Office may put your immigration application on hold until the outcome of your criminal matter is determined. Your application will only be put on hold if the outcome of your criminal matter would materially affect the outcome of your immigration application. For example, if you have previous criminal convictions which would by themselves result in a mandatory refusal, your application will be refused regardless. If, however, you do not have past criminal convictions, or your conviction history is on the lower end of the spectrum, the outcome of your current criminal matter would be highly relevant in the decision-making process of your immigration application.
I Need to Provide a Criminal Record Certificate. What is it and How can I Obtain it?
For certain immigration applications such as Skilled Worker visas in the education, health or social sectors, you may be required to provide a Criminal Record Certificate as part of your supporting documents. This certificate must be obtained before your application is made, and is usually issued by the police or law enforcement agency in the country where you have been resident for over 12 months in the 10 years prior to the date of your application. It will confirm your criminal record and may include arrests which are pending further investigation or prosecution. Your certificate must be dated within the last 6 months (if you are applying from your current country of residence) or within the last 6 months of you leaving the last country in which you were resident for over 12 months.
Please contact us if you have a criminal conviction, fine, or other penalty in your record and are unsure how this could affect your immigration application.