Criminality - in the eyes of immigration officials, a stain that can never be washed

20 January 2021

We all make mistakes - but some people make very big mistakes and end up breaking the law. Mercifully legislation allows for debts repaid to society to be forgotten through a rehabilitation law, whereby certain criminal convictions can become ‘spent’ after a period of time. However, when it comes to foreign nationals wishing to enter or stay in the UK, rehabilitation provisions are almost non-existent; furthermore the threshold at which immigration authorities can deny someone entry or permission to stay has recently been lowered. 
 
The UK’s Immigration Rules include general grounds for refusal which most immigration applications must not fall foul of – the general grounds are divided between mandatory and discretionary grounds, under which applications must or may be refused respectively. The general grounds now also apply to most EEA nationals wishing to enter the UK.
 
Amongst the mandatory grounds for refusal, an application must be refused if the applicant has received a custodial sentence of 12 months or more regardless of when the sentence was issued - potentially precluding individuals who may have committed an offence many, many years ago from being able to come to the UK. Without qualification of the thresholds, applications must also be refused where the applicant is a persistent offender who shows a particular disregard for the law or has committed a criminal offence which caused serious harm.
 
Previously custodial sentences of 4 years or longer, or sentences between 12 months and 4 years received in the last 10 years, would result in a mandatory refusal. 
 
Some jurisdictions may have comparatively strict sentencing laws, so that an offence that might receive a shorter custodial sentence or none at all in the UK nevertheless results in a substantial period of imprisonment. 
 
Immigration officials do have a very limited discretion to grant permission to enter or to remain when a person’s application falls for refusal on the general grounds, but in instances of criminality convincing an immigration officer to exercise discretion can be very difficult.
 
The lack of flexibility in the Rules and current guidance appears to be unfair and fails to account for the passage of time and the circumstances of offences. The fact rough sleeping is now a discretionary ground for refusal further shows the harsh standpoint currently taken. It is questionable what public policy is served by denying entry or refusing visas to an individual who may have committed a relatively minor offence, potentially decades ago, and who cannot reasonably be described as representing a risk to the UK or the public. It appears that reformed characters are simply not accommodated for under the current law.

 

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