- Mandatory grounds for refusal
- Exclusion by the Secretary of State
- Offences committed outside the UK
- Exceptions to mandatory bans
- Discretionary grounds for refusal
- Applications for 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. Those caught out by these rules over the years include former boxer Mike Tyson, Duane “Dog the Bounty Hunter” Chapman, Tyler, the Creator and perhaps OJ Simpson.
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.
In this post we look at the mandatory grounds for refusal (“must be refused”) and discretionary grounds for refusal (“should normally be refused”). We also look at the limited exceptions available.
General grounds for refusal of applications for entry clearance, leave to enter, leave to remain and indefinite leave to remain are found in part 9 of the Immigration Rules. These are also referred to by the Home Office as “suitability requirements”. In December 2020 these rules were substantially amended.
Part 9 does not apply to all immigration routes, those that are excluded are set out at paragraph 9.1.1 of the rules. Some applications have their own suitability requirements either instead of or in addition to part 9. 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 9, 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 9.2.1 of the immigration rules provides mandatory grounds for refusal for people subject to a deportation order or a decision to make a deportation order.
Paragraph 9.4.1 states that applications for entry clearance, leave to enter or leave to remain must be refused where the person:
(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; or
(b) is a persistent offender who shows a particular disregard for the law; or
(c) 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 9.4.2.
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 be 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 disproportionate to consider them a persistent offender”
- 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
Nancy has been convicted five times for shoplifting in big supermarkets. All offences took place when she was 16 years old and found herself homeless. Nancy is now 30 years old and has not had any troubles with the law since. It is arguable that an application made at this time should not be refused as all offences date from many years ago, all were relatively minor offences of the same seriousness, they caused little public nuisance, and were related to a particular situation (Nancy’s homelessness).
Fred had two minor offences for shoplifting aged 18. At the age of 21, he was convicted for possession of a class A drug and was sentenced to a community order. At the age of 23, he was convicted of assault and was sentenced to another community order. Fred is now 26. It is likely that his application will be refused as he has offended frequently, the seriousness of the offences increased, and the last offence was only three years ago.
The guidance defines this as “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”.
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.
Paragraph 9.4.4 sets out additional mandatory reasons for the refusal of visitor visa applications, which must be refused where the person:
(a) has been convicted of a criminal offence either in the UK or overseas where they 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 received a non-custodial sentence or an out of court disposal that is noted on their criminal record
Refusal will not be mandatory if more than 12 months has passed since the end of the custodial sentence in (a) or the date of conviction in (b).
The provisions for applications under Appendix FM are different. These are found at paragraphs S-EC.1.3 and S-EC.1.4 for entry clearance applications, and S-LTR.1.2 to S-LTR.1.5 of the rules.
Under Appendix FM 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. The guidance for Appendix FM refers decision makers to the ‘Criminality: Article 8 ECHR cases’ guidance. The relevant section is “Very compelling circumstances” and sets out a list of examples of relevant factors:
- the best interests of any children who will be affected by the foreign criminal’s deportation
- the nationalities and immigration status of the foreign criminal and their family
- the nature and strength of the foreign criminal’s relationships with family
- the seriousness of the difficulties (if any) the foreign criminal’s partner and/or
child would be likely to face in the country to which the foreign criminal is to be
- the Court of Justice of the European Union (CJEU) judgment in Ruiz Zambrano
(European citizenship)  EUECJ C-34/09
- how long the foreign criminal has lived in the UK, and the strength of their
social, cultural and family ties to the UK
- the strength of the foreign criminal’s ties to the country to which they will be
deported and their ability to integrate into society there
- whether there are any factors which might increase the public interest in
deportation – see section on the public interest
- cumulative factors, for example where the foreign criminal has family members in the UK but their family life does not provide a basis for stay and they have a significant private life in the UK. Although, under the rules, family life and private life are considered separately, when considering whether there are very compelling circumstances, both private and family life must be taken into
The guidance is explicit that this is an extremely high threshold.
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) under Appendix FM. 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.
Louis was convicted of an offence in the US and sentenced to three years’ imprisonment on 3 January 2018. His sentence therefore ended on 3 January 2021. Louis is released for good conduct on 4 January 2020. However, any application to enter the UK under Appendix FM will be refused until 3 January 2031, that is until 10 years have passed since the end of the three-year sentence.
Jasmine is convicted of an offence and sentenced to 18 months imprisonment on 6 March 2019. She appeals against the sentence and her sentence is decreased to 11 months. Any application she makes under Appendix FM to enter the UK will be refused until 6 February 2025, on the five year anniversary of the end of her reduced sentence.
Poor character, conduct or associations
Applications must be refused under paragraph 9.3.1 or if already granted must be cancelled under paragraph 9.3.2 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. It can include convictions, but is more wide ranging that that and also includes conduct, character, associations and other reasons. Appendix FM has the same provisions at paragraphs S-EC.1.5 and S-LTR.1.6.
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
- 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
- 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 9.2.1.(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.
A House of Commons Library research briefing from July 2016 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.
It was reported in 2015 that rap artist Tyler, the Creator, had been banned from entry to the UK for a period of three to five years. He shared the content of his refusal of entry letter with the Guardian, which referred to the “behaviour guidelines” and went on:
“The home secretary has considered whether, in light of this list, you should be excluded from the UK on the grounds that your presence here would not be conducive to the public good … The home secretary has reached this decision because you have brought yourself within the scope of the list of unacceptable behaviour by making statements that may foster hatred, which might lead to intercommunity violence in the UK …
Your albums Bastard, in 2009, and Goblin, in 2011, are based on the premise of your adopting a mentally unstable alter ego who describes violent physical abuse, rape and murder in graphic terms which appears to glamourise this behaviour.”
Tyler was given no advance warning, was detained, refused entry and removed.
For family visa applications under Appendix FM, similar provisions are found at paragraph S-EC.1.2.
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.
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 membership of a trade union.
Exceptions to mandatory bans
Applications for entry clearance might be granted despite even where mandatory refusal applies in certain limited circumstances.
Breach of ECHR or Refugee Convention
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.
The Home Office guidance refers to “any very compelling factors that amount to an exceptional reason why the application should be granted”. “Exceptional reason” has a broken hyperlink, and so the guidance is of no further use on this point.
Previous guidance was more helpful as it provided a non-exhaustive list of reasons 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 to the extent that refusing entry to them 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 very compelling circumstances will justify a grant despite the conviction, and that the starting point will always be a refusal.
Discretionary grounds for refusal
As well as the 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 less than 12 months: paragraph 9.4.3(a) of part 9
- 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 9.4.3(b)
The rules state that where the above applies, applications “may” be refused.
Discretionary grounds for refusal that apply to entry clearance applications made under Appendix FM are where a person:
- has been convicted of an offence but not sentenced to prison in the 12 months before the date of the decision on the application: paragraph S-EC.2.5(a)
- is considered to have caused serious harm through their offending: paragraph S-EC2.5(b)(i)
- is a persistent offender: paragraph S-EC.2.5(b)(ii)
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.
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 the routes outside of Appendix FM that lead to settlement, part 9 will apply. In Appendix FM, the relevant paragraphs relating to criminality and conduct are S-ILR.1.2 to S-ILR.1.8.
- they have a deportation order in force
- they have been convicted of an offence for which they have been sentenced to imprisonment for at least four years
- they have been convicted of an offence for which they have been sentenced to imprisonment for at least 12 months but less than four years, unless a period of 15 years has passed since the end of the sentence
- they have been convicted of an offence for which they have been sentenced to imprisonment for less than 12 months, unless a period of seven years has passed since the end of the sentence
- 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
- their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law
- their conduct, character, associations or other reasons make it undesirable to allow them to remain in the UK
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 under these paragraphs may be able to apply for an extension of leave instead, although the requirements of part 9 for that application will then need to be met.
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 the original and a previous update.