Potential border problem caused by discrepancy between ETA and visitor suitability rules

Following the recent roll out of the new Electronic Travel Authorisation (ETA) regime for non-visa nationals, there has emerged an apparent discrepancy between some of the suitability requirements in the ETA rules and the visitor rules. This is relevant because it could, at least in theory, lead to cases of someone being granted ETA only to be refused entry at the border (or for permission to be cancelled after entry).

Criminality

With respect to criminal offences that result in a non-custodial sentence or a custodial sentence of up to 12 months, the ETA rules, found in Appendix Electronic Travel Authorisation, say this (my emphasis):

ETA 2.2. An application for an ETA must be refused where the applicant:

[…]

(b) has been convicted of a criminal offence in the UK or overseas unless more than 12 months have passed since the date of conviction.

However, the suitability rules for visitors, found in Part 9 of the immigration rules, say this:

9.4.4. An application for entry clearance or permission to enter under Appendix V: Visitor, or where a person is seeking entry on arrival in the UK for a stay for less than 6 months, 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 less than 12 months, unless more than 12 months have passed since the end of the custodial sentence; or

(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, unless more than 12 months have passed since the date of conviction.

So for custodial sentences, the ETA rules measure the 12 months as starting from the date of the conviction, whereas in the visitor rules, the clock only starts running once the custodial sentence has ended.

Case study

Sunja is convicted of theft on 1 January 2025 and receives a six-month custodial sentence. Her sentence is due to end on 15 August 2025.

She plans to travel to the UK on 12 February 2026. If she applies for an ETA on 5 January 2026, this will be more than 12 months since the date of the conviction so assuming she meets all the other requirements, the ETA would presumably be granted.

However, if she travels to the UK on the date she intends, she could be turned away at the border for falling foul of the Part 9 suitability rules, as less than 12 months will have passed since the end of her sentence.

In this case, it would make sense for Sunja to wait until 16 August 2026 to travel to the UK unless the reason for her travel is urgent and she is willing to take the risk of being turned away at the border.

Because ETAs last for two years, it is possible that the discrepancy is intentional rather than accidental, to allow someone to apply for the ETA, and then book the rest of their trip, before they are actually permitted to enter the UK under the Part 9 rules. However, even if this is the case, this is far from ideal as it can lead to confusion for travellers and disrupted travel plans, especially for those who do not read the immigration rules in their entirety before visiting the UK, which I am reliably informed is most people.

Non-conducive to the public good

Both the ETA rules and the Part 9 have the same wording of the “non-conducive” rule:

ETA 2.3. An application for an ETA must be refused where the applicant’s presence in the UK is not conducive to the public good because of their conduct, character, associations or other reasons (including convictions which do not fall within the criminality grounds).

In this case, the discrepancy lays in the guidance. The “Suitability: non-conducive grounds for refusal or cancellation of entry clearance or permission” guidance that applies across the board to most applications states that:

Part 9 of the immigration rules does not apply to applications for an ETA. Suitability considerations for ETAs must be considered under Appendix: Electronic Travel Authorisation. For further information see the Electronic Travel Authorisation guidance and refer only to the sections of this guidance that are specified in the Electronic Travel Authorisation guidance.

The ETA guidance has the following examples of what might be considered to be non-conducive to the public good:

• War crimes, terrorism and extremism
• Previous breach of immigration law grounds
• False representations
• Unpaid litigation costs
• Previous cancellation of an ETA
• Previous refusal as a visitor

As an aside, all of the above grounds other than “war crimes” are actually separate grounds of refusal under Appendix Electronic Travel Authorisation so it’s not clear whether they fall under “non-conducive to the public good” or their own separate categories in the context of an ETA application, though nothing seems to turn on this.

However, the list of factors that could lead to a refusal on non-conducive grounds under Part 9 as covered in the general guidance also includes:

• Admitting the person to the UK could unfavourably affect the conduct of public policy
• International travel bans
• Immigration offending
• Inciting public disorder
• Involvement with criminals and gangs
• Proceeds of crime and corruption

The discrepancy between the two suggests that it may be possible for someone to be granted an ETA and then refused entry at the border on the basis of factors such as previous immigration offending, which in this context means things like human trafficking.

Other grounds under Part 9

Finally, there are other grounds of refusal under Part 9 which are not found in the ETA rules, including a mandatory ground of refusal of entry into the UK:

• where the person is a persistent offender who shows a particular disregard for the law (9.4.1(b))
• where the person has committed a criminal offence or offences which have caused serious harm (9.4.1(c))
• where the person is excluded from the Refugee Convention or would be so excluded if they made a protection claim (9.5.1)
• where it is more likely than not that the person is, or has been, involved in a sham marriage or civil partnership (9.6.1)
• where the decision-maker is satisfied that the person has committed a customs breach (9.19.1)

All of the above are grounds for being refused entry into the UK (or for permission to be cancelled, once admitted into the UK) which are not found in the ETA rules.

Case study

Solomon has three previous convictions for driving whilst under the influence, the first two of which resulted in non-custodial sentences, while the third, from three years ago, resulted in a custodial sentence of three months.

Solomon may thus be granted an ETA, as more than 12 months have passed since his last conviction, while being refused entry at the border on the grounds of being a “persistent offender”.

Conclusion

It’s likely that the reason for the seemingly more relaxed suitability requirements under the ETA rules is the need to process them very quickly, with most decisions coming in within hours or days, whilst at the same time leaving the door open to still refusing entry to anyone the Home Office does not wish to admit into the country. However, this means that for anyone potentially caught by any of the Part 9 grounds for refusal, it’s essential to be aware that a grant of ETA does not guarantee admission into the country, and where relevant, the need to time everything accordingly.

With many thanks to Tom Brett Young at VWV and Matt Wills at Laura Devine Immigration for identifying these discrepancies in their presentation at the recent ILPA Business Immigration Conference.