- Mandatory grounds for entry clearance refusal
- Discretionary grounds for entry clearance refusal
- Applications for limited leave or indefinite leave to remain
Criminal convictions and other signs of poor character can, unsurprisingly, negatively affect applications for leave to enter or remain in the UK. This has always been so, but in December 2012 the rules were changed to permanently ban entry of those with serious convictions, other than in certain very narrow circumstances, and to impose entry bans of various lengths in other cases.
By their nature, blanket rules can give rise to harsh results, individual hardship and injustice. Some of those convicted of criminal offences, including some people later revered, later redeem themselves in some way or are convicted in dubious or exceptional circumstances. They are nevertheless forbidden from entry to the UK.
In this post we look at the mandatory grounds for refusal (“must be refused”) and further discretionary grounds for refusal (“should normally be refused”) in some cases involving lower level criminality. We also look at the limited exceptions set out in Home Office policy documents and the available case law.
General grounds for refusal of applications for entry clearance or leave to enter are set out at paragraph 320 of the Immigration Rules. General grounds for refusal of applications to extend or vary leave are set out at paragraph 322. Both these paragraphs are found in part 9 of the Immigration Rules.
Mandatory grounds for entry clearance refusal
Paragraph 320(2) of the Immigration Rules provides mandatory grounds for refusal for people subject to a deportation order or who have been sentenced to a period of imprisonment. Accordingly, an application must be refused if:
the person seeking entry to the United Kingdom:
(a) is currently the subject of a deportation order; or
(b) has been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years; or
(c) has 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
(d) has 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.
Where this paragraph applies, unless refusal would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, it will only be in exceptional circumstances that the public interest in maintaining refusal will be outweighed by compelling factors.
Similar provisions for applications under Appendix FM are found at paragraphs S-EC.1.3 AND S-EC.1.4. For visitors, it is paragraphs V 3.2(b) and V 3.4 of Appendix V.
A person who has been sentenced to a period of imprisonment of at least four years is permanently excluded from the UK unless there are exceptional circumstances.
Those who have been convicted to periods of imprisonment of less than four years will be banned from the UK for a period of ten years (if sentenced to imprisonment for a period between 12 months and four years) or five years (for sentences of less than 12 months). The “ban” starts from the end of the sentence, where the sentence is the entire sentence imposed, rather than simply the time spent in prison.
However, this does not include:
- suspended sentences (unless that sentence is subsequently ‘activated’), or
- convictions which are subsequently quashed on appeal.
If sentences are increased or reduced on appeal but the person remains convicted of the offence, the ‘revised’ sentence length will apply.
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 320(6). 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”:
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; or
- Using a position of responsibility such as teacher, communty or youth leader
To express views which:
- Foment, 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 or
- Foster hatred which might lead to inter-community violence in the UK.
This briefing also records that “hundreds” of people had been personally excluded by the Secretary of State between 2010 and 2016 and points out that no application to come to the UK needs to have been made before a person is added to the list.
For family visa applications under Appendix FM, similar provisions are found at paragraph S-EC.1.2. For visitors, the relevant paragraph is V3.2(a).
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.
For those who have been sentenced to a period of imprisonment abroad, the length of time during which they will not be allowed in the UK will remain the same. However, as explained below, if a person has been convicted of an offence which is not considered an offence under UK law, such as proselytism, this offence will be disregarded.
Exceptions to mandatory bans
Applications for entry clearance might be granted despite prison sentences in certain limited circumstances. These exceptions do not appear in the rules themselves but instead are set out in a separate Home Office policy document: General grounds for refusal: Section 1.
Breach of ECHR or Refugee Convention
The Home Office’s guidance states this exception is likely to be rare, and most likely to apply in cases where a person was deported from the UK, but their deportation order was later revoked on the grounds that it violated the European Convention on Human Rights, the Refugee Convention or compassionate grounds. This does not mean that the person will be allowed to claim asylum or make an application for protection from outside the UK.
The Home Office defines the scope of this exception as follows:
This means a situation where refusal would be unjustifiably harsh. A person who is convicted of a criminal offence and sentenced to imprisonment, regardless of whether this is in the UK or elsewhere, must be aware it can affect their ability to gain entry to other countries. Therefore, it would take compelling factors to grant entry clearance or leave to enter when they would otherwise be refused.
The guidance goes on to state that a non-exhaustive list of circumstances which might be considered exceptional:
• since conviction, the passage of time or the personal circumstances of the person have significantly changed such that maintaining a refusal would be so perverse as to undermine confidence in the immigration system
• there is reliable evidence to suggest the conviction was politically motivated
• the person concerned intends to make a significant investment in the UK – for example, buying or heavily investing in a major company, so by refusing entry it would not be in the national interest
Rather controversially, the third exception essentially allows a wealthy convict to buy their way into the UK. The fact that the list is specifically stated to be non-exhaustive does mean there may be some scope to argue, for example, that an exception might potentially be made where the applicant has received a foreign prison sentence which would be considered harsh and excessive by UK standards.
However, the Home Office guidance makes it clear that only compelling circumstances will justify a grant despite the conviction, and that the starting point should always be a refusal.
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. Examples could include convictions for same-sex relationships or proselytism. Note that it is the offence itself, rather than the sentence which needs to not be recognised in the UK, rather than the conviction.
This type of exception seemed potentially to have arisen when Chinese dissident artist Ai Weiwei was refused entry to the UK. The decision to refuse him entry was quickly reversed but the initial decision seemed to be on the basis of failure to declare a conviction that was not publicly recorded anywhere.
This exception is different from convictions which the treatment of offences which occurred outside of the UK (see above).
Discretionary grounds for entry clearance refusal
As well as the mandatory bans from entry to the UK, the Secretary of State has the power to refuse an application when a person:
- has been convicted of an offence but not sentenced to prison in the last 12 months: paragraph 320(18A) of part 9; paragraph S-EC.2.5 of Appendix FM; and paragraph V3.5(a) of Appendix V
- is considered to have caused serious harm: paragraph 320(18B(a)) of part 9; paragraph S-EC2.5.(b)(i) of Appendix FM; and paragraph V3.5(b) of Appendix V
- is a persistent offender: paragraph 320(18B(b)); paragraph S-EC.2.5(b)(ii) of Appendix FM; and paragraph V3.5(c) of Appendix V
- their exclusion is deemed to be in the public good for example because of poor character, conduct or associations: paragraph 320(19) of part 9. Equivalent provisions are found in Appendix FM (paragraph S-EC.1.5) and Appendix V (paragraph V.3.3), although as mandatory rather than discretionary grounds for exclusion
In these cases, there is a presumption that an application will be refused because the wording of the rules is that a claim “should normally be refused”, but it does not have to be refused.
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 (FPN), penalty charge notices (PCN), or penalty notices for disorder (PND)
- 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” (see below).
An individual can be refused when, in the view of the Secretary of State, his or her offending has caused serious harm, such as death or serious injury.
Visa officials are directed to look at the consequences of the person’s actions, rather than the seriousness of the offence itself. Therefore, a person who has been convicted of driving without insurance may have their application refused if, when driving, they killed or seriously injured another person.
An individual can also be refused when, in the view of the Secretary of State, the person is a persistent offender who shows a particular disregard for the law.
This 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 be request an assessment of future risk; the guidance directs caseworkers to “identify a pattern of escalating offending and intervene before a more serious offence is committed”.
- timescale over which the offences were committed. Here, 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, this could make refusing that person’s application and/or pursuing their deportation or removal from the UK a disproportionate response. But, repeated criminality over a lengthy period of time would make such action favourable”.
- Frequency of the offences
- actions taken to address the cause of the offending, including programs or activities aimed at addressing the cause of the offending. These actions must have a significant impact on reducing the offending
The guidance General Grounds for refusal: Section 2 directs the Home Office that:
If you decide to refuse an applicant on either of these grounds, you must take into account any human rights grounds and make sure that your refusal is both proportionate and reasonable.
Therefore, in example 4, if Fred had lived in the UK since the age of ten, he was married to a British citizen, and had two British citizen children, it is possible that a refusal on this ground would be considered disproportionate.
Poor character, conduct or associations
Guidance to visa officials sets out the broad test to be applied:
A person does not need to have been convicted of a criminal offence for this provision to apply. To decide if a refusal under this category is appropriate you must consider if there is any reliable evidence to support a decision that the person’s behaviour calls into question their character, conduct and/or associations to the extent that it is undesirable to allow them to enter or remain in the UK. This may include cases where a person has entered into, attempted to enter, or facilitated, a sham marriage to evade immigration control.
A list of circumstances where refusal would normally be justified is also set out:
You must consider refusing an applicant under paragraph 320(19) when:
- admitting the person to the UK could unfavourably affect the conduct of foreign policy
- the person is subject to a United Nations (UN) or European Union (EU) travel ban that has not yet been listed under the Immigration (Designation of Travel Bans) Order 2000
- the person is a threat to national security
- there is reliable evidence the person has been involved in or associated with war crimes or crimes against humanity – it is not necessary for them to have been charged or convicted
- admitting the person may lead to a breach of UK law or public order
- admitting the person may lead to an offence being committed by someone else – for example, the applicant may have extreme views which if expressed could result in civil unrest and a breach of the law
The guidance goes on to state that it is unlikely a person will be refused for a single conviction resulting in a non-custodial sentence outside the relevant timeframe in other parts of the general grounds for refusal but that the greater the number of cautions, warnings, discharges and admonishments on a person’s record, the more likely it is the person will be refused under this paragraph.
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:
- low level criminality (e.g. caution, warnings, conditional discharge etc.), when numerous in number
- association with known criminals, looking at the extension of the connections and the impact of the activities of these known criminals
- involvement with gangs, including how senior an individual is in that gang
- pending prosecutions (in this case, the Secretary of State may decide to put the application on hold until the outcome of the prosecution)
- extradition requests
- public order risks (including if an individual previously made speeches including violence or which brought other persons to commit offences)
- membership, support or financing or a proscribed organisation
- unacceptable behaviours (as per the list above)
- war crimes
- deliberate debting, when a person is indebted deliberately and recklessly and there is no evidence of an intention to pay off these debts
- where a person has benefited from the proceeds of crime
- involvement in corruption
- where a person’s presence in the UK could unfavourably affect foreign policy
- assisting in the evasion of immigration controls, including by providing false documents or being involved in a sham marriage
- employing illegal workers
- deception and dishonesty dealing with the government, including by defrauding the benefit system or failing to declare convictions.
One is left with the impression that paragraph 320(19) 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.
Applications for limited leave or indefinite leave to remain
There are no mandatory grounds for refusal related to criminal convictions for applications for leave to remain under part 9 of the Immigration Rules. Bizarrely, though, leave to remain applications under Appendix FM rather than part 9 must be refused if the person has received a criminal sentence of 12 months or more.
Even under part 9, an application may be refused under paragraph 322(5), which states that applications should normally be refused where:
It is undesirable to let an applicant stay because of their character, behaviour or associations (including convictions which do not fall within paragraph 322(1C)), or because they are a threat to national security.
An application can also be refused under paragraph 322(5A) where:
It is undesirable to permit the person concerned to enter or remain in the UK because:
- in the view of the Secretary of State, their offending has caused serious harm, or
- in the view of the Secretary of State, they are a persistent offender who shows a particular disregard for the law.
Applications for indefinite leave to remain will always be refused, however, under paragraph 322(1C), if
(i) they have been convicted of an offence for which they have been sentenced to imprisonment for at least 4 years; or
(ii) they have been convicted of an offence for which they have been sentenced to imprisonment for at least 12 months but less than 4 years, unless a period of 15 years has passed since the end of the sentence; or
(iii) they have been convicted of an offence for which they have been sentenced to imprisonment for less than 12 months, unless a period of 7 years has passed since the end of the sentence; or
(iv) they have, within the 24 months prior to the date on which the application is decided, been convicted of or admitted an offence for which they have received a non-custodial sentence or other out of court disposal that is recorded on their criminal record.
Note here that applicants will be affected for longer periods of time than in applications for entry clearance:
- 15 years instead of ten for sentences of 12 months to four years;
- Seven years instead of five for sentences of less than 12 months; and
- 24 months instead of 12 months for non-custodial sentences.
A person prohibited from applying for indefinite leave to remain by these tariffs can potentially apply for an extension of limited leave, although as stated above paragraph 322(5) could lead to a refusal.
Paragraph 322(5) is not limited to situations where the applicant has committed a criminal offence. Like paragraph 320(19), it is a far-reaching provision that can be used as a “catch-all” to refuse on the basis of bad character.
In recent years, the Home Office has used this provision to refuse people for tax discrepancies; that is, the applicant declared a different level of income to the Home Office for immigration purposes than to HM Revenue and Customs for tax purposes.
In the case of Balajigari v Secretary of State for the Home Department  EWCA Civ 673, it was argued that paragraph 322(5) should only be used for more “heinous” offences such as a threat to national security. The Court of Appeal found that the Home Office was allowed to rely on this provision in tax discrepancy cases. But it also found that, before refusing an application relying on paragraph 322(5) on the grounds of dishonesty , the Home Office must:
- Let the applicant know that they are minded to refuse, and allow them a chance to submit more information as to why they should not be refused.
- With all of the evidence in front of them:
- Consider whether the applicant was dishonest
- Consider whether, even if dishonest, the applicant’s presence in the UK is undesirable
- Consider whether, even if dishonest and undesirable, the applicant should be granted leave for other reasons
There is guidance specific to paragraph 322(5) refusals.
This article was originally published in April 2017 and has been updated so that it is correct as of the new date of publication. My thanks to Nath Gbikpi for her assistance with both the original and the update.