Criminal convictions and other signs of poor character can, unsurprisingly, negatively affect applications for leave to enter or remain in the UK. More recently, the Home Office cancelled electronic travel authorisations of two leftwing political commentators, Cenk Uygur and Hasan Piker, because their presence would not be ‘conducive to public good’.
By their nature, blanket rules can give rise to harsh results, individual hardship and injustice. Some of those convicted of criminal offences later redeem themselves in some way or are convicted in dubious or exceptional circumstances. They are nevertheless forbidden from entry to the UK.
General grounds for refusal of applications for entry clearance, leave to enter, leave to remain and indefinite leave to remain are found in Part Suitability of the Immigration Rules. These are also referred to by the Home Office as ‘suitability requirements’.
Part Suitability does not apply to all immigration routes, those that are excluded are set out at paragraph SUI 1.1 of the rules. Some applications have their own suitability requirements either instead of or in addition to Part Suitability. Care must be taken to ensure that you have identified and checked all the applicable requirements.
Mandatory grounds for refusal
These grounds are where the immigration rules specify that applications ‘must’ be rejected. This is why they are referred to as mandatory grounds for refusal.
As stated at the beginning of Part Suitability, even where refusals are mandatory, decisions must still be compatible with the Refugee Convention and the European Convention on Human Rights.
Deportation order and prison sentences
Paragraph SUI 2.1 of Part Suitability provides mandatory grounds for refusal for people subject to a deportation order or a decision to make a deportation order.
Paragraph SUI 5.1 provides for mandatory refusals on the grounds of criminality. It states that applications for entry clearance, leave to enter or leave to remain must be refused where the person:
- has been convicted of a criminal offence in the UK or overseas for which they have received a custodial or suspended 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.
Where the above apply and entry clearance, leave to enter or leave to remain has already been granted this must be cancelled under paragraph SUI 5.2.
Where the criteria for mandatory refusal under SUI 5.1 are not met, SUI 5.3 provides additional grounds for discretionary refusal. These apply where an applicant:
- has been convicted of a criminal offence in the UK or overseas for which they have received a custodial or suspended sentence of less than 12 months; or
- 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.
Persistent offenders
The guidance explains that a decision on whether a person is a persistent offender who shows a particular disregard for the law involves an assessment of the following factors:
- number of offences
- seriousness of the offences, including the degree of public nuisance
- escalation in the seriousness of the offence. This seems to request an assessment of future risk; the guidance tells caseworkers that ‘Your aim is to identify a pattern of escalating offending and intervene before a more serious offence is committed’
- timescale over which the offences were committed. The guidance reads ‘If you can attribute a series of offences, committed a long time ago, to a particular incident or issue in a person’s life that is believed to have since been resolved, it may be inappropriate to consider them a persistent offender’
- frequency of the offences
- positive factors around the person’s behaviour. This includes ‘genuine, meaningful attempts to change a person’s behaviour and comply with the law that may indicate, on the balance of probabilities, that discretion should be exercised in the person’s favour’
Serious harm
The guidance defines this as:
‘an offence that has caused serious physical, psychological, emotional or economic 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’.
Sexual offences are highlighted in this section of the guidance and if a person is on the sex offenders register then their application will be refused on the grounds of serious harm. If they were previously on the register, then refusal is still likely.
Poor character, conduct or associations
Applications must be refused under paragraph SUI 3.1, or if already granted must be cancelled under SUI 3.2, where it is deemed that the person’s presence in the UK is ‘not conducive to the public good’. This means, reasons that may fall short of the other criminality grounds can be considered here. It can include convictions, but is more wide ranging, as it includes conduct, character, associations and other reasons.
The guidance sets out the broad test to be applied:
‘A person’s presence may be non-conducive to the public good for a range of reasons – for example because of reprehensible behaviour falling short of a conviction, or because their identity, travel history or other circumstances means that their presence in the UK poses a threat to UK society. A person does not need to have a criminal conviction to be refused admission on non-conducive grounds.’
A list of examples is provided:
- the person is a threat to national security, including involvement in terrorism and membership of proscribed organisations
- the person has engaged in extremism or other unacceptable behaviour
- the person has committed serious criminality
- the person is associated with individuals involved in terrorism, extremism, war crimes or criminality
- admitting the person to the UK could unfavourably affect the conduct of foreign policy between the UK and elsewhere
- there is reliable information that the person has been involved in war crimes or crimes against humanity – it is not necessary for them to have been charged or convicted
- the person is the subject of an international travel ban imposed by the United Nations (UN) Security Council or the European Union (EU), or an immigration designation (travel ban) made under the Sanctions and Anti-Money Laundering Act 2018
- the person has committed immigration offences
- if admitted to the UK the person is likely to incite public disorder
Much of the guidance is redacted, meaning that it is not known what other criteria are applied. The guidance does have specific sections, though, on:
- threat to national security
- extremism and unacceptable behaviour
- association with individuals involved in terrorism, extremism or war crimes
- admitting the person to the UK could unfavourably affect the conduct of foreign policy
- war crimes, crimes against humanity and genocide
- international travel bans
- immigration offending
- inciting public disorder
- involvement with criminals and gangs
- proceeds of crime and corruption
One is left with the impression that this is used as a ‘catch all’ provision to be deployed whenever an immigration officer would like to refuse an individual, but that individual does not fall in any of the other grounds for refusal.
Exclusion by the Secretary of State
There is also provision for the Secretary of State personally to order the exclusion of a person from the UK. Where this occurs, refusal is mandatory under paragraph SUI 2.1(a). Previous examples of personal orders for exclusion from the UK include Edward Snowden, Pamela Geller and Brittany Pettibone.
In 2005 the Government published a list of unacceptable behaviours that might lead to a person being added to this visa ‘black list’. This list has since been incorporated into guidance.
‘The list of unacceptable behaviours is indicative rather than exhaustive. It covers any non-UK national whether in the UK or abroad who uses any means or medium including:
· writing, producing or distributing material
· public speaking including preaching
· running a website
· using a position of responsibility such as teacher, community or youth leader
To express views which:
· incite, justify or glorify terrorist violence in furtherance of particular beliefs
· seek to provoke others to terrorist acts
· foment other serious criminal activity or seek to provoke others to serious criminal acts
· foster hatred which might lead to inter-community violence in the UK.’
Offences committed outside the UK
Offences committed outside the UK will have the same effect as those committed inside the UK.
This can have harsh consequences where a given country imposes sentences of imprisonment considerably in excess of standard UK sentencing for an equivalent offence. For example, some drugs offences considered relatively minor in the UK, and which would not necessarily attract a prison sentence at all can be very harshly sentenced in other countries, for example in Russia.
Conviction for an offence not recognised in the UK
In the case of offences which are not recognised in the UK, individuals should be treated as if they never were convicted. These are set out in section 8 of the relevant guidance. Examples could include convictions for same-sex relationships or membership of a trade union.
Visitors
Paragraph SUI 5.4 sets out additional mandatory reasons for the refusal of visitor visa applications, which must be refused where the person:
- has been convicted of a criminal offence in the UK or overseas for which they have received a custodial or suspended sentence of less than 12 months, unless more than 12 months have passed since the end of the custodial or suspended sentence; or
- 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 date of conviction.
Refusal will not be mandatory if more than 12 months have passed since the end of the custodial sentence in (a) or the date of conviction in (b).
Appendix FM
The provisions of Part Suitability apply to Appendix FM. This was not previously the case under Part 9 of the Immigration Rules, which was the predecessor to Part Suitability. This means that all of Part Suitability, including the criminality considerations which are part of the present article, applies to Appendix FM.
In certain cases, refusals of leave to remain may result in ‘unjustifiably harsh consequences’. Those cases are covered under paragraph Gen 3.2 of Appendix FM. Meaning, certain applicants who do not meet the requirements of Appendix FM, can nonetheless get leave to remain or entry clearance, if refusal would be ‘unjustifiably harsh’.
Those applicants need to satisfy only certain parts of Part Suitability. For the purposes of the present article, those parts of Part Suitability include the following:
- Paragraph SUI 2.1: if an applicant has a deportation order or exclusion order, or if the Secretary of State has personally directed their exclusion
- Paragraph SUI 3.1: if the Home Office considers refusals to be conducive to public good, and
- Paragraph SUI 5.1: conviction of more than 12 months, or persistent disregard for the law, or an offence which has caused serious harm.
It may be apparent that the words ‘conducive to the public good’ have appeared more than once in this article. The Home Office guidance on deportation provides a loose definition. Someone’s exclusion usually will be conducive to the public good where the person:
- has received an immediate custodial or suspended sentence of 12 months or more for a single conviction (in the UK or overseas)
- has received consecutive sentences totalling 12 months or more
- has been convicted of an offence that has caused serious harm
- is a persistent offender
The guidance further clarifies that serious harm is at the discretion of the Secretary of State. It refers to offences which have caused: ‘physical, psychological, emotional or economic harm to a victim, victims or to society in general’.
Persistent offender means a repeat offender, who has shown a ‘pattern of offending over a period of time’ demonstrating a ‘particular disregard for the law’.
Discretionary grounds for refusal
As well as mandatory refusals, the Secretary of State has the power to refuse an application when a person:
- has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of 12 months or less: paragraph SUI 5.3(a)
- has been convicted of a criminal offence in the UK or overseas for which they received a non-custodial sentence or an out of court disposal that is noted on their criminal record: paragraph SUI 5.3(b)
The rules state that where the above applies, applications ‘may’ be refused.
In these cases, there is a presumption that an application will be refused, because the wording of the rules is that a claim ‘will normally be refused’, but it does not have to be refused. A recent ruling at the Court of Appeal has held that, in certain contexts the word ‘may’ it could denote an ‘absolute entitlement to act in a particular way, rather than a discretion’.
Therefore, the word ‘may’ will have to be interpreted in light of the ‘context’ of the rules. Where mandatory requirements to refuse or cancel have not been met, the Home Office will have to justify the use of their discretion to refuse or cancel. There needs to be something justifying this refusal or cancellation.
To put it another way, it is likely that one of these cases will be refused but it may be possible to persuade the decision maker not to. Also, if the application is refused and a legal challenge is brought then a judge will need to consider whether the discretion was lawfully exercised (in an application for judicial review) or exercise the discretion him or herself (in a statutory appeal).
Non-custodial sentences
Non-custodial sentences include:
- fines, but not fixed penalty notices, penalty charge notices, or penalty notices for disorder
- cautions, warnings and reprimands
- absolute and conditional discharges
- non-custodial sentences and orders
- disqualifications from driving
It does not include binding over, as this will not form part of a person’s criminal record. Non-custodial sentences recorded on a person’s criminal record can be a reason for refusal, if they took place in the 12 months prior to an application.
In addition, where there are multiple non-custodial sentences, whether recorded on a person’s criminal record or not recorded (e.g. fixed penalty notices and binding over), they can be used to refuse an application on the basis of the applicant being a ‘persistent offender’ or on the grounds of ‘poor character, conduct or association’.
Applications for indefinite leave to remain
For most routes leading to settlement, Part Suitability will apply unless the route is excluded or contains its own suitability code. Appendix EU is one such excluded route, and it will be explored later in the article.
For refugees seeking settlement, SUI 1.1(e) provides the indication that Part Suitability does not apply to ‘Appendix Settlement Protection’. However, Part 11 of the Immigration Rules make references to Appendix Suitability for ‘indefinite leave to remain’, at paragraph 352ZM, read with 352ZH(v).
This means that the sections of Appendix Suitability apply to refugees seeking settlement. Appendix Settlement Protection supplements this with paragraph STP 2.1. Paragraph STP 2.1 does not cross-refer any Part Suitability paragraphs but entails similar considerations.
Other Appendices, however, make specific references to Part Settlement. For instance, Appendix Settlement Family Life states at paragraph SETF 2.1 that an ‘applicant must not fall for refusal under Part Suitability’.
A person prohibited from applying for indefinite leave to remain under these paragraphs may be able to apply for an extension of leave instead, although the requirements of Part Suitability for that application will then need to be met.
Appendix EU and Suitability
A different position applies under Appendix EU. Paragraph SUI 1.1(a) of Part Suitability expressly excludes Appendix EU from the scope of Part Suitability. Instead, Appendix EU contains its own suitability provisions. This section provides a brief account of Suitability under Appendix EU.
The suitability rules in Appendix EU are within paragraphs EU15 to EU18. These provisions draw a distinction between conduct committed before the ‘specified date’ versus after. The specified date is 31 December 2020 at ‘2300 GMT’. That is the date on which the Brexit transition period officially ended, and the UK stopped being subject to EU law.
Under paragraph EU15(1), an application under Appendix EU will be refused on suitability grounds where, at the date of decision, the applicant is subject to a deportation order or an exclusion order.
Paragraph EU15(1A) then deals with conduct committed before the specified date. In those cases, refusal is mandatory where the Home Office is satisfied that refusal is justified on grounds of public policy, public security or public health. This entails a high threshold and usually includes EU law considerations.
By contrast, for conduct committed after the specified date, paragraph EU15(2) provides for refusal where the Home Office deems the applicant’s presence in the UK not ‘conducive to the public good’. This will usually be the same as any domestic law deportation or exclusion case.
Paragraph EU16 provides further discretionary powers. These include false or misleading information, previous refusal under the EEA or Appendix EU framework. These also include cases where refusal is justified by pre-specified-date ‘public policy, public security or public health’ grounds, or by post-specified-date ‘conducive’ grounds.
Appendix EU also contains its own cancellation and revocation rules within paragraphs A3.1 to A3.3. The cancellation rules are much more complicated and involve considerations of whether someone has already arrived in the UK, or whether they are about to. In certain places, they also involve additional requirements of somebody being an ‘excluded person’.
The cancellation provisions in Appendix EU are not covered in the present article. However, the cancellation provisions too, for suitability purposes, largely re-state the distinction between a conduct committed pre-specified-date, and post-specified-date (i.e. 31 December 2020 at 23:00 GMT).
Therefore, Appendix EU is not governed by Part Suitability. Its suitability provisions are different. In broad terms, they separate cases involving pre-specified-date conduct, where the EU-law considerations apply, from post-specified-date conduct, where the domestic law applies.
Conclusion
Navigating these suitability requirements is a complex and often unforgiving exercise. The mandatory and discretionary grounds for refusal can catch out even those who have long since moved on from past mistakes. The breadth of the ‘not conducive to the public good’ provisions gives decision-makers considerable discretion. Much of the underlying guidance remains redacted, making it difficult to anticipate or challenge refusals on these grounds. Applicants with any criminal history, whether in the UK or abroad, should seek specialist immigration advice before making an application.
