A criminal record has always had a potential impact on a foreign national's ability to enter and live in the UK. However, from January 2025 it becomes a whole lot more significant for a large percentage of the global population, as citizens of most countries (except for EU / EEA members, for whom the change will happen in April 2025) will need an Electronic Travel Authorisation (ETA) to visit the UK.
Until now, citizens of non-visa countries such as the US, Canada and Australia have been able to travel to the UK without prior clearance. Those with a criminal record were under no obligation to disclose it, unless directly questioned by a Border Officer. In practice, this rarely happened, unless you were on a watch list having committed a particularly serious crime. You would just enter via an e-gate, without speaking to anyone at the UK Border.
From 8 January 2025, completion of an ETA application will include answering – truthfully – questions about your good character, including any criminal convictions. So what do the UK's immigration rules say about past criminality?
The answer used to be dictated by the Rehabilitation of Offenders Act 1974, under which offences committed in the UK remain on someone's record for a specified period, with some more serious convictions never being "spent". The Home Office used to stick to the periods under the Act where a conviction became spent, or wiped, when considering visa and entry applications.
This changed in 2012, when a bespoke scheme for past criminality was introduced. Now, the Home Office uses its own rules and guidance to assess the impact of a particular offence, or pattern of offending. The rules were further tightened in 2020, and now represent a significant obstacle to entry and residence in the UK for those with a criminal record. The rationale for the changes is said, in published guidance, to be the need for a "more robust and consistent framework against which immigration applications are assessed ... on suitability grounds". The rules apply to offences committed either in the UK or overseas.
So in summary, what do the current rules say about past criminal offences for visitors to the UK?
Mandatory ban, no time limit
- Sentence of at least 12 months' imprisonment
- Persistent offenders
- Where the offence(s) have caused serious harm
- Where presence in the UK is deemed not conducive to the public good, including those with convictions that do not fall within other criminality grounds for refusal
Mandatory ban, time limited
- Sentence of up to 12 months' imprisonment, unless more than 12 months have passed since the end of the sentence
- Non-custodial sentence or out-of-court disposal, unless more than 12 months have passed since date of conviction
Some of the terms used in the rules and guidance need explanation:
Ø Persistent offenders can be those with multiple convictions who have shown a "particular disregard for the law". It is a subjective test, so open to interpretation. Factors considered are the number and seriousness of offences, any escalation, the timescales involved and any action taken to address the offending
Ø Serious harm means societal harm – so, an offence that caused serious physical or psychological harm to a victim, or has contributed more generally to a problem in the community. Convictions involving violence, drugs, sex or racial motivation will typically fall into this category
What can I do to challenge a mandatory ban?
Someone applying for an ETA with any of the above criminal issues will be refused. They will therefore need to apply for a visa to visit the UK. We have written a number of articles about the issues faced by those applying for visit visas, including how to deal with past refusals. Similar considerations apply here: while refusal is, on the face of it, mandatory, it is possible to request the exercise of discretion, outside the rules, on exceptional grounds, or on the basis that your human rights will be disproportionately harmed by a refusal.
Putting together a persuasive body of evidence to support your application will be vital. You will wish to reference, for example, the time that has passed since your conviction and efforts made at rehabilitation; and the family or other compelling reasons for your visit.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
