Tightening the borders

Jennifer Stevens

Arena Immigration

The UK is introducing an additional hurdle for visa applicants – the requirement for proof of criminal record checks in other countries the applicant has lived in. But this extra bureaucracy will cause headaches, even for those who have led a blameless life

© Arthimedes / Shutterstock.com

© Arthimedes / Shutterstock.com

The UK has seen unprecedented immigration over the last decade, largely due to the EU’s open border policy, which allows citizens of member states to work in any other EU country. Inevitably, a few new arrivals have found themselves on the wrong side of the law – primarily due to traffic offences and other low-level wrongdoing – but a few high-profile crimes have caught the public attention and led the government to try to prevent those with serious criminal records from settling in the country.

Ironically, however, the new visa restrictions will not apply to EU citizens, despite public outcry in the UK when a 14-year-old girl was murdered in 2014 by a Latvian immigrant who had served time in jail in his home country for killing his wife.

James Brokenshire, the immigration minister, says: “Foreign criminals have no place in the United Kingdom and this scheme will help keep them out. Since 2010, checks on foreign nationals going through the UK criminal justice system have increased by more than 1,000 per cent, helping ensure more foreign criminals are taken off our streets and making our communities safer. But we want to go further still by preventing these people getting into the country in the first place. Mandatory police certificates will serve as an additional tool to help us achieve this.”

The new requirement affects all applicants applying for entry clearance to the UK, who must provide an overseas criminal record certificate from any country where they have lived continuously for 12 months or more since the age of 18 in the ten years prior to submitting their applications. UK Visas and Immigration (UKVI) can refuse an application when an applicant has failed to provide a valid criminal record certificate from the relevant authority.

The government began introducing this requirement in stages, initially for Tier 1 (investor) and Tier 1 (entrepreneur) applications (and their dependants aged 18 and over) from 1 September. It is anticipated that this will be rolled out to all categories, including those transferring to their employers’ UK office, in 2016. This will undoubtedly have a significant impact on business, which often requires employees to transfer at short notice and on an urgent basis.

Taking the USA as an example, applicants applying for a UK visa who have lived stateside for at least 12 months will be required to obtain a Criminal Record History/FBI Identification Record. The requirements are onerous – the application must be submitted to the FBI Criminal Justice Information Services (CJIS) Division by the applicant only (third-party representatives and prospective employers cannot apply on their behalf). As part of the process, the applicant will be required to provide an original fingerprint card, which they must first obtain from a law enforcement agency or private fingerprint agency prior to submission of the application. This is in addition to providing fingerprints, which is already a requirement during the entry clearance application process. Applications for the certificate currently take up to four weeks if applying within the USA and up to 12 weeks if applying to the USA from overseas. The preparation time for the application for the certificate, including obtaining the fingerprints, must also be taken into account.

Applicants must bear in mind that they may be required to provide a certificate from other countries they have lived in. The timing will be entirely dependant on the process within each country. The UK government recognises that there are some countries where criminal record certificates are not available and there is a concession when it is not reasonably practicable to obtain a criminal record certificate from the overseas authority. However, the applicant will still need to contact the relevant overseas authority to enquire whether an alternative document can be produced for the purpose of the application.

If it is not possible to obtain a certificate, for example because the country does not produce such documents, the applicant must provide a letter that details their attempts to obtain a certificate and confirms why this has not been possible. The letter must be submitted with the application and UKVI will consider the explanation against the situation in that country and decide whether to waive the requirement. If UKVI concludes that it is possible for the applicant to obtain a certificate, but they have failed to do so, then they will be asked again to provide a certificate.

This concession provides for some flexibility but is likely to delay an application further while the information submitted by the applicant is considered and a conclusion reached, particularly during the early stages of the roll-out.

The forms for UK entry clearance applications already request information on previous convictions and applicants are required to provide their fingerprints as part of the application process. The British Consulate in New York recently made it mandatory to provide court documents where there has been a previous conviction or to annotate the application to confirm that it did not go to court. The UK is, however, hailing the introduction of the criminal record certificate requirement as an important step in preventing foreign criminals worldwide from coming to the UK.

This new requirement will mostly impact those skilled workers, investors and businesspeople that the UK should want to attract, as they are likely to have travelled extensively and lived in other countries.

The Tier 1 (investor) category is for those who are coming to the UK to invest at least £2 million in government bonds or shares in UK companies. The Tier 1 (entrepreneur) category is for those looking to invest at least £200,000 in a business or businesses in the UK. By starting with a small category of applicants, the UK has stated that it will be able to monitor and evaluate the implementation of the policy. This follows other changes specific to tightening the requirements for these particular categories aimed at bringing money and business into the UK.

The requirement does not currently apply to extensions or in-country switching applications under Tier 1 (investor) and (entrepreneur). Additionally, this will not be introduced for short-term visitor visas as it has been deemed to be a disproportionate requirement. The requirement could, however, be applied to these categories in the future.

It is anticipated that the requirement will be rolled out to other categories next year, including the Tier 2 category, which enables UK employers to sponsor migrant workers for skilled positions in the UK. The Intra Company Transfer sub category of Tier 2 is utilised by global employers transferring their employees from offices all over the world to the UK for essential knowledge sharing, as well as to take up positions that cannot be filled by settled workers. The transfers are often for short periods to satisfy an immediate need. Although the UK has acknowledged that it is disproportionate to require short-term visitors to provide these certificates, it does not appear to have applied the same logic to Tier 2 applicants required in the UK for short periods.

The anticipated lengthy and difficult process for obtaining these criminal record certificates will inevitably have an impact on UK business if companies are unable to transfer their employees quickly as and when required, potentially leaving a skills shortage in the UK. This requirement comes in the wake of other recent changes and discussion on the reduction of visas for skilled migrants under Tier 2, therefore companies may relocate or consider opening offices elsewhere, as the UK requirements may be considered to be too cumbersome.

Family-based applications, which have been targeted over the last couple of years, are also likely to be subject to this requirement next year, which may place a further burden on families trying to relocate to the UK.

The new criminal records certificate requirement is also likely to lead to an increase in refusals under the general grounds for refusal in Part 9 of the UK Immigration Rules, which can be for minor offences or if an immigration officer deems the exclusion of an applicant to be conducive to the public good. Under the general grounds, there are mandatory and discretionary grounds for refusal of an application based on previous criminal convictions, which include previous prison sentences and also if, within the 12 months prior to the date that an application is decided, the person has been convicted of or admitted an offence for which they received a non-custodial sentence or other out-of-court disposal that is recorded on their criminal record. This can therefore include minor offences, such as traffic offences, committed in the USA or overseas.

An immigration officer may also refuse an application if they deem the exclusion of the applicant from the UK to be conducive to the public good, for example, because the applicant’s conduct, character, associations, or other reasons, make it undesirable to grant them leave to enter. Although examples are provided in the Home Office’s guidance, this broad ground for refusal permits significant discretion when an immigration officer reviews the applicant’s criminal record certificate.

Applicants and employers must plan even further in advance to ensure that the criminal record certificate is obtained prior to submission of the application. However, the certificate must have been issued within six months of submission of the application, therefore an applicant cannot prepare too far in advance. Timing will be critical, particularly if obtaining certificates from several countries with differing processing times.

About the author:

Jennifer Stevens is senior associate solicitor and practice manager at Laura Devine Solicitors, based in the firm’s New York office.


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