The UK visa application is like no other. An applicant is faced with an application form which seeks answers to a wide field of matters and activities touching on every aspect of the applicant’s life and history. A mistake or omission can be termed a false representation or an act of deception which could lead to a 10 year visa ban.
Criminal background information is required in virtually all visa routes and an applicant is obliged to respond to a couple of questions relating to their criminal convictions or records. Any mistake, misrepresentation or concealment will very likely lead to a refusal and 10 year ban. It is common thinking that a criminal conviction is when a person is prosecuted, found guilty and sent to jail .Criminal convictions are much wider than that and also involves non- custodial sentences, including warnings, reprimands, cautions and such other out-of-court disposals in the event of an encounter with law enforcement agencies. It could be a minor traffic offence or a caution against anti-social behavior.
The immigration rules calibrates the penalty or consequences of criminal convictions in accordance with the severity of the offence and the route in question.
The major source of law on the consequences of criminal convictions in visa applications can be found in Part 9 of the Immigration Rules. Under this Part, criminal convictions are graded into two: those for which a visa refusal is mandatory and those for which a visa refusal is discretionary. In the first category, the visa application MUST be refused. In the second category, the decision maker has a discretion and MAY refuse the application or as well grant it.
For the purposes of this short write up, we will identify the category of applications which MUST be refused for criminal convictions as follows:
1) where the applicant has been convicted of a criminal offence for which they have received a custodial sentence of 12 months or more,
2)if the applicant is a persistent offender who shows a particular disregard for the law,
3)if the applicant has committed a criminal offence or offences which caused serious harm.
It is instructive that visas already issued will be liable to mandatory cancellation if any of the convictions identified above occur.
There are additional provisions where the application is for a visit visa or for any stay for less than 6 months. Where this is the case, the application MUST be refused if the applicant is convicted of a criminal offence for which they have received a custodial sentence of less than 12 months or non-custodial sentence or out-of-court disposal that is recorded on their criminal record unless more than 12 months have passed since the end of the sentence. Visas already granted MAY be cancelled for same reason.
The immigration rules have a different set of consequences for criminal convictions in the following categories of applications involving family members:
1)A married person seeking to join their partner/spouse
2) A child applying with a parent to join the parent’s partner or child’s parent,
3)A parent applying to join a child on the basis of family life,
4) An adult dependent relative applying on the basis of family life.
For these categories of applicants, the criminal conviction requirements are categorized into where the applicant WILL BE REFUSED and where they WILL NORMALLY BE REFUSED. Refusal under the first category is mandatory while there is a narrow window of discretion in the second category.
The applicant WILL BE REFUSED in an application for entry clearance where they have either;
1) been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years; or
2) 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
3)has been sentenced to imprisonment of less than 12 months, unless a period of 5 years has passed since the end of the sentence.
The category for which an applicant WILL NORMALLY BE REFUSED are;
1) where the person has been convicted and received a non-custodial sentence or other out -of -court disposal that is recorded on their criminal record within the 12 months prior to the date of the application; or
2) the person’s offending has caused serious harm; or
3) the person is a persistent offender who shows a particular disregard for the law.
The consequences of criminal conviction is calibrated differently where the applicant is a partner seeking indefinite leave to remain. Here, the applicant WILL be refused if they have a conviction and sentenced to imprisonment for at least 4 years. If the period of imprisonment is less than 4 years but at least 12 months, then a period of 15 years must pass since the end of the sentence. If the imprisonment is for less than 12 months , the applicant will remain banned unless a period of 7 years has passed since the end of the sentence. The applicant WILL equally be refused if they received a non- custodial sentence or other out of court disposal that is recorded on their criminal record unless 24 months has passed prior to the date on which the application is decided. The applicant WILL additionally be refused where their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law.
It is obvious that the consequences of criminal convictions could be very severe, ranging from an indefinite period of ban, to fifteen, ten, seven ,five, two and one year. A visa applicant caught in this web will be unwise to lie about it, especially where the criminal record is likely known to the Home Office. Honesty remains the best policy. It is very possible to overcome any visa ban based on criminal convictions. To achieve this would require the sublime skills of a fit and competent immigration law specialist who can challenge the applicability or lawfulness of the ban by reference to other laws higher in the legal pyramid or to which the immigration rules are subject. It is possible for the applicant to demonstrate “very exceptional compelling circumstances” and to plead a line of persuasive case law on the matter. Visa ban on the basis of a previous conviction may not be a hopeless situation. It is possible to avoid or to overcome the ban if appropriate knowledge and skills are deployed.
Eddie Onyeka Esquire.