In December 2020, the Immigration Rules in the UK experienced an overhaul. One way in which they changed was surrounding the entry requirements for Applicants seeking to enter the UK under the Family Migration visa route, particularly in regard to their criminality.
This route is for those seeking to enter or remain in the UK on the basis of their family life with a person who is a British Citizen, is settled in the UK, is in the UK with limited leave as a refugee or person granted humanitarian protection, is in the UK with limited leave under Appendix EU, or is in the UK with limited leave as a worker or business person by virtue of either Appendix ECAA Extension of Stay or under the provisions of the relevant 1973 Immigration Rules (or Decision 1/80) that underpinned the European Community Association Agreement (ECAA) with Turkey prior to 1 January 2021.
You can apply if the sponsor is your:
- Fiancée/ fiancé
- Spouse/ civil partner
- Parent (and you are under 18 years old)
Following the overhaul of the rules in December 2020, the criminality rules surrounding entry clearance applications under this route became stricter.
The General Criminality rules
Part 9 of the Immigration Rules, state the grounds upon which, unless stated otherwise, a UK visa application will be refused.
It contains a selection of mandatory refusal grounds, in which an application must be refused and discretionary grounds, which is case dependent and for the Secretary of State to decide.
Mandatory refusal of entry clearance, permission to enter or permission to stay
Paragraph 9.4.1. of the Immigration Rules provides 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
(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
Discretionary refusal of entry clearance, permission to enter or permission to stay (other than for visitors or those seeking entry for less than 6 months)
Paragraph 9.4.3. of the Immigration Rules provides that entry clearance, permission to enter or permission to stay may be refused (where paragraphs 9.4.2. and 9.4.4. do not apply) 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
Criminality rules specifically for Family migration
For family migration visas, the rules on criminality are slightly different.
When initially seeking to the enter the UK for the first time under this route, the following rules apply:
Section S-EC: Suitability – entry clearance of the immigration rules states:
S-EC.1.1. The applicant will be refused entry clearance on grounds of suitability if any of paragraphs S-EC.1.2. to 1.9. apply.
S-EC.1.4. The exclusion of the applicant from the UK is conducive to the public good because they have:
(a) been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years; or
(b) been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 12 months but less than 4 years, unless a period of 10 years has passed since the end of the sentence; or
(c) been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 12 months, unless a period of 5 years has passed since the end of the sentence.
S-EC.1.5. The exclusion of the applicant from the UK is conducive to the public good because, for example, the applicant’s conduct (including convictions which do not fall within paragraph S-EC.1.4.), character, associations, or other reasons, make it undesirable to grant them entry clearance.
S-EC.2.1. The applicant will normally be refused on grounds of suitability if any of paragraphs S-EC.2.2. to 2.5. apply.
S-EC.2.5. The exclusion of the applicant from the UK is conducive to the public good because:
(a) within the 12 months prior to the date on which the application is decided, the person has been convicted of or admitted an offence for which they received a non-custodial sentence or other out of court disposal that is recorded on their criminal record; or
(b) in the view of the Secretary of State:
(i) the person’s offending has caused serious harm; or
(ii) the person is a persistent offender who shows a particular disregard for the law.
Serious Harm
The Criminality Guidance policy defines serious harm as:
“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. For example, a person may have been convicted of a sexual offence and only received a 3-month custodial sentence. You must take into account any available offender management reports and any sentencing remarks made by the judge relating to the impact on the victim.”
Persistent offender
The Criminality Guidance policy defines persistent offender as:
“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”
To be considered a persistent offender, an Applicant does not have to of served a custodial sentence, but could have consistently received out-of-court disposals such as:
- Fines
- Community orders
- Suspended sentences
The Home Office state that when considering whether someone is a persistent offender, they will consider the following:
- 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
Contact us
For expert advice and assistance in relation to how these rules could affect your visa application, please contact us on 0208 995 3556.