Primarily, whether an applicant will be refused under the 'suitability' grounds in an EU Settlement Scheme application relates to previous criminal conduct, see also the previous article on criminality and applications under the Scheme. It should be noted that even where there are not mandatory grounds for refusal on suitability grounds for criminal conduct, suitability grounds encompass discretionary grounds for refusal relating to providing false or misleading information with an application under the Scheme.
Immigration rules EU15, EU16 and EU17 of Appendix EU set out the basis on which an application under Appendix EU will or may be refused on suitability grounds.
An application to the EU Settlement Scheme may be refused on 'suitability' grounds in the following circumstances; based on the applicant's personal conduct or circumstances in the UK or overseas an application may be refused:-
- where an applicant has relevant prior criminal convictions, and
- where the applicant has been open and honest in their application under the Scheme.
The relevant guidance states that an assessment of suitability must be done on a case by case basis.
Mandatory refusal of EUSS applications on suitability grounds
There are mandatory reasons to refuse an application; under Rule EU15(1) an application under Appendix EU will be refused on grounds of suitability where, at the date of decision, the applicant is subject to:
- a deportation order (as defined in Annex 1 to Appendix EU) or a decision to make a deportation order;
- an exclusion order or exclusion decision (as defined in Annex 1 to Appendix EU)
This also applies to deportation or exclusion orders or exclusion decisions made under the immigration laws of the Bailiwick of Guernsey, the Bailiwick of Jersey or the Isle of Man [EU15 (2) – (4)].
Disclosure of criminal convictions
The guidance relating to suitability states that applicants (aged 18 or over) are required to provide information about previous criminal convictions in the UK and overseas. However applicants are only required to declare past criminal convictions that appear in their criminal record in accordance with the laws of the State of conviction at the time of the application.
Further, there is no requirement to declare spent offences, cautions or alternatives to prosecution, for example fixed penalty notices for speeding.
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.
Applications will be checked against the Police National Computer (PNC) (where the applicant is aged 10 or over), and the Warnings Index (WI). It is important to note that caseworkers can, where appropriate, consider evidence of criminality that they encounter on the PNC or WI even if that evidence was not declared.
What are the consequences of disclosure of criminal conduct?
From the information provided by the applicant and obtained from the PNC and/or WI, the caseworker must determine whether the application is to be referred to Immigration Enforcement (IE) for a full case by case consideration of the applicant's conduct on:
- grounds of public policy, public security or public health under the previous EEA Regulations where the conduct was committed before 31 December 2020; or
- the ground the applicant's presence in the UK is not conducive to the public good where the conduct was committed after 31 December 2020. In this circumstance where there has been a decision to deport or exclude the applicant under rule EU15(1) or EU15(2), the application under the Scheme will be refused by IE.
Where an application under the Scheme is refused by IE in respect of conduct committed before 31 December 2020 it must include considerations of public policy, public security or public health.
Discretionary refusals of EUSS applications on grounds of suitability
Under rule EU16 of Appendix EU an application under the Scheme may be refused on grounds of suitability where, at the date of decision, the decision-maker is satisfied that:
- EU16(a) may apply where false or misleading information, representations or documents have been submitted with the application;
- EU16(b) may apply where applicants stand to be removed because they have not exercised or they have misused their rights under the previous Regulations. This applies to decisions or applications made under the Scheme before 1 July 2021;
- EU16(c) deals with a number of circumstances relating to refusal of entry under the previous EEA regulations or where their previous leave has been cancelled, primarily on public policy, public security or public health grounds. The refusal must be justified on the grounds that the Secretary of State deems the applicant's presence in the UK is not conducive to the public good;
- EU16(d) refers to discretionary (and proportionate) refusal where the applicant has been excluded under the previous regulations, primarily on public policy, public security or public health grounds;
A 'relevant excluded person' is a person either:
" " in respect of whom the Secretary of State has made a decision under Article 1F of the Refugee Convention to exclude the person from thev Refugee Convention or under paragraph 339D of the Immigration Rules to exclude them from humanitarian protection
- in respect of whom the Secretary of State has previously made a decision that they are a person to whom Article 33(2) of the Refugee Convention applies because there are reasonable grounds for regarding them as a danger to the security of the UK
- who the Secretary of State considers to be a person in respect of whom either of the previous two bullets would apply except that either: o the person has not made a protection claim o the person made a protection claim which has already been finally determined without reference to Article 1F of the Refugee Convention or paragraph 339D of the Immigration Rules
- in respect of whom the Secretary of State has previously made a decision that they are a person to whom Article 33(2) of the Refugee Convention applies because, having been convicted by a final judgment of a particularly serious crime, they constitute a danger to the community of the UK Where the applicant meets the definition of a 'relevant excluded person', under rule EU16(d), because of their conduct committed before the specified date, then refusing the application must additionally be proportionate and justified on the grounds of public policy, public security or public health"
- EU16(e) refers to discretionary (and proportionate) refusal for conduct after 31 December 2020, where the person is a 'relevant excluded person' or where false or misleading information, representation or documentation has been employed.
An applicant who is refused under rule EU16(d) or EU16(e), but who cannot be deported due to a human rights reason, can be considered for a grant of restricted leave, outside the Immigration Rules.
The final rule relating to suitability, EU17 of Appendix EU, states that the the application must not be refused on the basis of an order or decision set out in EU15 or EU16 which has been set aside or revoked at the date of decision on the application.
An overview of the suitability requirements relating to applications under the EU Settlement Scheme can be found in the guidance here.
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.