People, Not Past Mistakes: A Fairer Approach to Criminality in Immigration

I’ll acknowledge, it is a little edgy - in the current climate - to argue for a more nuanced approach to historic criminality in the immigration system. Sounds like the sort of thing that would feed a tabloid journalist with everything they think they need to know about an immigration lawyer.
 

But if those same journalists read beyond the first few lines, they might find themselves agreeing with me (or maybe I’m delusional).

Because the reality is that the UK has some of the most restrictive immigration rules out there when it comes to historic criminality. I think we can all agree that a country has the right to utilise reasonable restrictions on people coming to their country who may pose a threat to the public. But, as I am determined to convince you, our rules and, how they are being implemented, go far beyond this. They operate in such a way that one can never be considered rehabilitated, regardless of the passage of time or how someone’s life may have evolved in the years following a conviction.

Under the current UK immigration rules, if you have ever received a custodial sentence of 12 months or more, you will face a mandatory ban from the UK for life. This has been the position since December 2020 and has created a lot of challenges. While the rule has been in place for some time, with the roll out of the Electronic Travel Authorisation (‘ETA’) earlier this year, the problems this creates are showing themselves with increasing regularity. This is because the ETA specifically asks about historic criminality, something which most likely did not arise when non-visa nationals visited the UK before this.

How does this manifest?

Say you are an American citizen who struggled with addiction issues in your late teens. The addiction led to a number of drug related offences, one of which attracted a prison sentence of more than 12 months. While in prison you became sober and began to get your education. Following your release from prison, you continued your education and later established your own successful business. Twenty years later you are a successful businessperson with significant means. You are mindful of your personal history and regularly donate to and speak with groups focussed on drug rehabilitation. As part of your business dealings, you have visited the UK regularly throughout the years and your eldest daughter is, in fact, now studying in the UK – another reason to visit.

Following the ETA rollout to US citizens in January 2025, you applied for your ETA, answering all questions honestly. You were taken aback to discover your ETA was refused! While this was concerning, you were undeterred, the ETA refusal mentioned you could apply for a visa. You do so, thinking it is simply an administrative hiccup. But then your visa is refused, outright! And there is no right of appeal. You are effectively looking at a permanent ban from the UK, a country you have visited countless times in recent years, have close (and mutually beneficial) business dealings with and where your child lives.

You don’t pose a threat to the UK, as your record of travel to the UK is testament to. In fact, in the US, your offences have been expunged from your record. Or perhaps in your local jurisdiction they have been considered spent. Irrelevant! The UK requires disclosure of everything – spent, expunged, pardoned – there is no length you can go to that will allow you to be rehabilitated enough for the UK.

So is that it?

Well, theoretically the Secretary of State retains a residual discretion to admit someone to the UK outside the immigration rules and it is possible to apply on this basis and to seek judicial review of any refusal. While we have had success in the last year asking for such discretion to be exercised (and would strongly advise anyone concerned about this to seek professional advice before making any applications), there is no current guidance on when discretion should be exercised. Before December 2020, lifetime bans from the UK only kicked in when someone had received a four year prison sentence and the guidance made reference to the sort of factors which may be relevant to a caseworker when assessing whether to exercise discretion outside these rules.

The guidance included common-sense considerations which should be taken into account to avoid a decision which would be ‘unjustifiably harsh’. Examples of the types of factors to be taken into account included:

• “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

…

• 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”

It is unclear why such factors are not still acknowledged as important when looking at applications which feature historic criminality. The lack of sensible guidance and meaningful appeal rights makes any application on this basis a lot more difficult to predict the outcome of.

Living in the real world

The truth is that people’s lives are often complicated. All sorts of factors may have led to a criminal conviction in someone’s past. Addiction is an obvious example of the sort of factor which can lead someone to be caught within the criminal justice system but there are all sorts of issues which may arise in a person’s life at some point but which do not define them for all time. Do we really believe that these people are never worthy of rehabilitation? Because that is the message our current immigration rules send.

This is more pressing than ever as the Statement of Changes published last week envisages these restrictive rules being reorganised and rolled out more broadly – including to family members of British citizens.

I do understand why a more nuanced approach to historic criminality could be construed the wrong way in our current media and political environment but I don’t believe that is a good enough reason not to act. At the very least I hope that the rearrangement of the rules will be accompanied by comprehensive guidance which acknowledges the complexities within a person’s background.

Ultimately it is the UK who will lose out if this issue is not addressed. Whether it is the businessperson who chooses not to invest in a country they cannot visit, the entertainer who cannot perform here, the scientist who cannot deliver a prestigious lecture or the grandparent who cannot visit their newborn grandchild, until the UK sees people as they are and not only ever marked by what they once did, we will all be poorer for it.

further information

If you have any questions or concerns about the topics raised in this blog, please contact Katie Newbury or a member of our immigration team.

About the Author

Katie is a Partner in the immigration team and has over 10 years' experience across a wide spectrum of UK immigration matters, with particular expertise in applications made under Tier 1 of the Points Based System and complex personal immigration matters. She regularly provides commentary on the workings of the UK Immigration Rules and is often involved in lobbying the Home Office, including in relation to the design of a future post-Brexit UK immigration system.