In this post we ask how do criminal convictions affect EU nationals and their family members present or applying under the EU Settlement Scheme?
The answer to this question is complex, and involves when the convictions or conduct took place, whether deportation or expulsion action has been taken or is being considered, and whether the offence or conduct is such that it is 'conducive to the public good' for a person to be deported, expelled, or the convictions or conduct is such that an application is likely to be refused. Changes in the Immigration Rules in place from 1 January 2021 now govern how criminal convictions will impact on decisions about the status of EU nationals and their family members in the UK.
The criteria which informs these decisions are discussed below.
Convictions or conduct by EU nationals and their family members which occurred before 31 December 2020
The basic criteria governing the making of deportation or expulsion orders for offences committed by EU nationals and their family members before 31 December 2020 was set out in Regulation 27 of the Immigration (EEA) Regulations 2016. Regulation 27 of the 2016 Act reflected EU Directive 2004/38/EC, which provides criteria governing the expulsion of EU nationals and their family members who are settled in other Member States. This criteria governed decisions made under what are known as 'conducive grounds', meaning that deportation or expulsion is 'conducive to the public good'.
The criteria applied in Regulation 27 in respect of decisions to deport or expel an EU national on 'conducive grounds' were that firstly that the decision should be:-
- Based exclusively on the personal conduct of the person concerned
- The personal conduct must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, and the threat does not have to be imminent
- General prevention of such conduct, or matters which are not personal to the particular person or case, does not justify the decision
- Previous criminal convictions alone do not justify the decision
- The decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, but must be grounds specific to the EU national.
Further, all such decisions needed to take into account the person's age, state of health, family and economic situation, the length of residence in the UK, the social and cultural integration in the UK, and the extent of the links with the country of origin.
Further criteria was applied for those EU nationals and their family members who had a right to permanent residence (i.e. resided in the UK for 5 years or more exercising treaty rights), and that is that the decision could not be taken except on serious grounds of public policy and security.
Finally, if someone had resided continuously in the UK for 10 years or more, or if under the age of 18 and was in the child's best interests, the decision could not be taken except on imperative grounds of public policy or security.
As can be seen, although this criteria was applied to crimes committed in the UK, the fact of a past conviction could not justify in itself an order to deport or expel an EU national; this is because the person had to provide a genuine, present and sufficiently serious threat (see above) to the 'fundamental interests of society'.
Changes for applicants applying under the EU Settlement Scheme or with status under the EU Settlement Scheme
Offences committed in the UK and abroad after 1 January 2021
Changes to the Immigration Rules were set down on 22 October 2020 (HC 813). These provisions set out how, after 1 January 2021, the position would change for all non-UK (including EU nationals and their family members) who commit offences in the UK after 1 January 2021. The changes further affect all non-UK nationals with past convictions wishing to come to the UK or to remain in the UK.
In short, EU nationals and their family members will be subject to the same regime as other non-EU foreign nationals with regard to criminality.
The Home Office press release of 22 October 2020 relating to the changes affecting EU citizens from 1 January 2021 with regard to criminality, stated the following:-
"Under changes laid in Parliament today, from 1st January 2021, EU citizens will be subject to the same firmer and fairer criminality rules that apply to non-EU citizens.
This means that:
- Foreign criminals sentenced to at least a year in jail will be banned from entering the UK,
- Foreign criminals sentenced to less than a year in jail could still be banned, with the Home Office considering on a case-by-case basis their full criminal history and whether they have ties to the UK such as family members,
- Foreign criminals who haven't received a prison sentence could also be banned from entering the UK, for example:
- if the offending is persistent or causes serious harm (such as sexual offences),
- if it is decided that their presence in UK is not conducive to the public good, or
- if they have a criminal conviction of any kind in the past 12 months and are seeking to enter the UK for the first time.
All offences will be considered, whether committed in the UK or overseas.
These changes do not apply to EU citizens protected by the Withdrawal Agreement, such as those with status under the EU Settlement Scheme. However, if an individual who is protected by the Withdrawal Agreement commits crimes from 1 January 2021, in the UK or overseas, their status could be revoked, for example if that crime resulted in a prison sentence of at least a year."
What these changes mean, therefore, is that once someone has been granted status under the EU Settlement Scheme, considerations in respect of deportation or expulsion on 'conducive grounds' will be governed under the criteria applied under the previous Regulations (see above) and are preserved; see also this article on our website here.
The Citizens' Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 substitutes Regulation 27A for Regulation 27 to provide for deportation or exclusion decisions taken because it is 'conducive to the public good' in respect of offences or conduct which occur after 1 January 2021.
It is therefore also important to note that status under the EU Settlement Scheme (pre-settled or settled status) might be revoked if criminal offences are committed after 1 January 2021, either in the UK or abroad. Further guidance in respect of the criteria for decisions to be taken on 'conducive' grounds can be found here.
It should also be noted that this criteria applies to both EU nationals and to their family members, including the family members of UK citizens applying under the Scheme.
The EU Settlement Scheme – Appendix EU of the Immigration Rules
Applications made under the EU Settlement Scheme are governed by Appendix EU, which states, at EU15 (1), that an application will be refused on grounds of suitability where a deportation or exclusion order has been made, or where a decision to make a deportation order is under consideration.
Under EU15 (2), offences committed either in the UK or abroad may lead to refusal on 'conducive' grounds, see above. Here also is the Home Office guidance on 'suitability' for grants under the EU Settlement Scheme, which discusses how offences committed after 1 January 2021 will be assessed, and here is a link to an article on our website about how 'pending' prosecutions will impact on an application made under the Scheme.
The 'suitability' guidance states the following in respect of applications under Appendix EU:-
Applicants (aged 18 or over) are required to provide information about previous criminal convictions in the UK and overseas and are only required to declare past criminal convictions that appear in their criminal record in accordance with the law of the State of conviction at the time of the application.
Applicants (aged 18 or over) are also required, as in other immigration applications, to declare whether they have any been involved in any terrorist related activities, war crimes, crimes against humanity or genocide.
Failure to declare such offences is likely to lead to refusal under EU16 of Appendix EU.
Types of offences which need to be disclosed
As set out above, criminal convictions in the UK, and those committed overseas which appear in their criminal record under the law in country where they occurred, must be declared, however the suitability guidance goes on to state the following about the sorts of offences which need to be disclosed:-
There is no requirement to declare spent offences, cautions or alternatives to prosecution for example fixed penalty notices for speeding.
Here also is a link to an article about how criminality can impact on other (non-EU) applications under the Immigration Rules.
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.