The UK's Electronic Travel Authorisation (ETA) scheme contains mandatory refusal grounds triggered by criminal convictions and other factors. An ETA refusal can have significant implications for both applicants and organisations, which can extend beyond the immediate inconvenience of being unable to enter the UK. This includes breach of contract or other liabilities when a UK entry refusal means contracted activities cannot be fulfilled. In this article, we connect the issues and highlight that if a person is not eligible for an ETA, legal advice may be required from both an immigration and commercial perspective.
The UK's ETA scheme is a pre-entry requirement for eligible nationals who intend to come to the UK to visit or for other short-term reasons. See our separate article for an overview of what an ETA is, who needs one and when.
How does the Home Office consider criminal convictions in ETA applications?
An ETA application must be refused in all cases where the applicant has:
- A conviction for a criminal offence in the UK or overseas within the last 12 months; or
- A conviction of a criminal offence in the UK or overseas at any time in the past, for which they have received a custodial sentence of 12 months or more.
Additionally, an ETA may also be refused or cancelled for other reasons, for example if the Home Office considers an applicant's presence in the UK is not conducive to the public good because of their conduct, character or associations.
The Home Office aims to process most ETA applications within 3 working days. An applicant declaring a criminal conviction will be a trigger for additional checks and therefore longer ETA application processing times. In almost all cases, declaring a relevant criminal conviction will also result in the ETA application being refused.
What steps should you take if you have a criminal record?
If you have not applied yet, it is important to seek legal advice before doing so. If you are ineligible to be granted an ETA, a detailed assessment should be conducted to determine the available options. This may include a full entry clearance application, in which your criminal record is addressed and the Home Office is asked to consider exercising discretion outside the Immigration Rules.
We would also suggest seeking advice if:
- You have already applied for an ETA, and you are concerned your application may not be successful;
- You have received an ETA refusal; or
- Your ETA is cancelled.
How can an ETA refusal affect commercial arrangements?
The refusal of an ETA can have significant implications for commercial arrangements, particularly those involving contractual obligations that require the physical presence of specified individuals in the UK. For instance, if an individual contracted to perform at a concert, participate in a sporting event, or fulfill a filming commitment is denied an ETA, this could result in a breach of contract. Such breaches may lead to financial losses, reputational damage, and potential legal disputes for both the individual and the contracting party.
To mitigate these risks, it is crucial for service companies, event organisers, and other contracting entities to include specific provisions in their agreements that address the possibility of an ETA or visa refusal. These provisions might include clauses that allocate the risk of refusal, such as force majeure clauses, which excuse performance under certain unforeseen circumstances, or contingency plans that outline alternative arrangements. Additionally, contracts could stipulate the requirement for individuals to seek legal advice and ensure their eligibility for an ETA well in advance of the event or commitment date. By proactively addressing these potential issues in contractual agreements, parties can better manage the risks associated with ETA ineligibility or refusal, and ensure smoother execution of their commercial obligations.
Recommendations for affected individuals and organisations
- If you are an individual with concerns about your circumstances, seek legal advice on your eligibility before you apply for an ETA. There could be alternative immigration options available to you.
- If you are an individual who has received an ETA refusal or cancellation, or if you have previously been refused UK immigration permission, seek legal advice urgently.
- If you are an organisation that has engaged an individual who cannot fulfil a contract due to being unable to enter the UK, seek legal advice before you take action.
- Individuals and organisations who are unable (or may be unable) to fulfil existing contractual obligations due to ETA ineligibility or refusal should seek specialist legal advice on mitigating liability for any losses incurred due to this.
- When entering into future contractual arrangements, the performance of which may be impacted adversely by an ETA refusal for any specified or key person, seek legal advice on how to allocate and mitigate the risk between the contracting parties. This may include conditions precedent, obligations on the individual to take all steps available to seek permission to enter the UK in advance, exploring insurance options or negotiating contract terms that exclude or limit financial exposure in the event of an ETA refusal.
Our ETA service
Lewis Silkin has launched a unique ETA service for complex cases, which combines our expertise across immigration and dispute resolution. The service provides a comprehensive strategy for assessing and addressing the immigration and commercial issues that can arise where an individual may be ineligible for an ETA.
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.
