EU nationals coming to and staying in the UK

Aim of this page

The aim of this page is to:

1. provide details about the free movement of EU nationals to the UK
2. set out some of the reasons why EU nationals may be refused entry to the UK
3. look at the changes which will take place in the lead up to (and after the) UK leaves the EU, with a particular focus on those EU nationals currently living in the UK

Why is this important?

Many people assume that providing you’re not on any type of ‘wanted list’ then a criminal record will not stop EU nationals from entering the UK.

However, although a criminal record alone is not the only thing that can stop somebody being permitted entry, the Home Office states that refusal may be given if an individual constitutes ‘a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’. Therefore, if you’re planning to visit the UK, it’s important to understand the reasons why you may be refused entry.

It’s also important that EU nationals currently living in the UK understand what might happen as the UK leaves the EU, in terms of whether their criminal record might prevent them from staying.

Background

The Free Movement Directive 2004/38EC which came into force in April 2004 provided for citizens of the EU and their family members to:

• Look for a job in another EU country
• Work there without needing a work permit
• Reside there for that purpose
• Stay there even after employment has finished
• Enjoy equal treatment with nationals in access to employment, working conditions and all other social and tax advantages.

The directive stated that member states could take measures to restrict the freedom of movement and residence of EU nationals and their family members if they felt there could be grounds of public policy, public security or public health.

On 1 February 2017, the EEA Regulations 2016 were introduced which allowed member states to determine their own requirements of public policy and public security as well as making other substantive changes in respect of public policy and public security decisions.

UK residence documents for EU citizens

Residence card

You don’t need a residence card to confirm you can live in the UK unless you’re:

1. from outside the European Economic Area (EEA) or Switzerland
2. an extended family member of someone from the EEA or Switzerland

However, a card can:

• help you re-enter the country more quickly and easily if you travel abroad
• show employers you’re allowed to work in the UK
• help to prove you qualify for certain benefits.

A residents card costs £65 and lasts for five years.

The application form asks that you must disclose details of all criminal convictions.

In accordance with Section 56A of the UK Borders Act 2007 you are required to disclose all spent or unspent convictions. This includes road traffic offences but not fixed penalty notices (such as speeding or parking tickets) unless they were part of a sentence of the court. This includes all drink driving offences. Note: We will carry out criminal record checks on all applicants and dependants.

Permanent residence after five years

You only need to apply for a permanent residence document if:

• you want to apply for British citizenship
• you want to sponsor your partner’s visa application under the Immigration Rules.

You will be asked to disclose details of your criminal record as set out above.

Permanent residence before five years

In certain situations, you can automatically be granted permanent residence status in less than five years. This includes:

• If you have to stop working permanently because of a work related accident or illness that means you’re entitled to a UK pension
• After you’ve been resident in the UK for 2 years if you have to stop working or being self-employed because of an accident or illness (‘permanent incapacity)
• After you’ve been resident in the UK for 3 years if you (a) reach State Pension age; (b) retire early; (c) start work or self-employment in another EU country.

Restrictions on entry to the UK on the grounds of public policy or public security

When making a decision to refuse admission, exclude, refuse or revoke residence or remove an EEA national or their family member from the UK on the grounds of public policy or public security, officials must ensure that any decision made is in accordance with the following principles:

The decision must comply with the principle of proportionality

This means that the measures to restrict an individual’s free movement rights must be necessary and appropriate to protect the fundamental interests of society.

The decision must be based exclusively on the personal conduct of the person concerned

This means that a decision can only be taken with regard to the conduct of the individual concerned and the circumstances must be assessed on a case-by-case basis taking account of any available evidence. It is not necessary for a person to have criminal convictions for a decision to be made on public policy or public security grounds, if their personal conduct is assessed to be a threat.

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society

• Genuine – the threat must be a realistic one
• Present – the threat must exist but it does not need to be imminent. An indication of a present threat may include intelligence or any precautionary measures which have been imposed on the individual for example a licence condition imposed because there is a genuine and present risk.
• Sufficiently serious – the threat must be serious enough to affect one of the fundamental interests of society but does not need to be a serious threat.

It’s not necessary to demonstrate that an individual is likely to commit a specific type of offence but when considering whether an individual poses a threat, the following factors will also be considered:

• Nature of offence – in the case of deportation, the government’s view is that certain types of offences weigh in favour of deportation. These are offences which typically result in a custodial sentence or a requirement to sign the Violent and Sex Offender’s Register.
• Length of sentence – in most cases, the length of sentence will provide a strong indication of the severity of the offence, although each case will be considered on its own merits.
• Rehabilitation – the duration of any rehabilitative efforts will be relevant to the public policy decision. Where such efforts are in their infancy (for example a few weeks in the community or a few sessions undertaken), these will not be considered useful to determine a risk of re-offending.

Matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision

Decisions must be made on a case-by-case basis, considering all the facts and circumstances of the individual case.

The individual’s previous criminal convictions do not in themselves justify the decision

A decision made on public policy or public security grounds cannot be made on criminal convictions alone. The nature of the previous offending including the number and seriousness of previous convictions will form part of the assessment of the persons present conduct. On occasion, cautions and warnings can be taken into account.

The decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person

A decision may be made to prevent an individual from carrying out certain, specific types of conduct. This is particularly important in the national security context, where there is reliable intelligence to suggest that an individual or their family member may pose a threat to public security.

Additional considerations for a person resident in the UK

If you are resident in the UK, additional considerations must be taken into account when deciding whether you should be excluded from the UK. These include:

• Age – This will have greater significance if you are under the age of 18.
• State of health – Your physical and mental health will be considered and, in particular, the implications of any decision on your health. If you’re claiming ill-health, you would need to provide substantial medical evidence from medical professionals.
• Family and economic situation – If you have dependants in the UK, such as children who are financially or physically dependent on you, this will be taken into account.
• Length of residence – Generally the shorter the length of residence, the less likely it is that you will have established significant links to the UK and the easier you would find it to be able to integrate into the country you are being returned to. This would include anybody who has not resided in the UK for a continuous period of 5 years and therefore have not acquired a permanent right of residence.
• Social and cultural integration – This considers the degree to which you have integrated in the UK. This could include links to family and friends, length of residence, properties or business interests in the UK. A criminal record would be an indication of a lack of integration especially if the nature of your offending was anti-social behaviour against a local community or offending that caused a serious or long-term impact on a victim or victims (for example burglary or sexual assault). Any type of custodial sentence would also demonstrate that you were unable to become an integral part of society.

What protection against restriction of Free Movement rights and removal is there?

Article 28 of the EEA Regulations provides additional protection to you in relation to decisions to remove you or family members from the UK.

Individuals with a permanent right of residence

If you or a family member has established a permanent right of residence, a decision to refuse admission, exclude, revoke residence or remove you from the UK, will only be permitted on serious grounds to public policy or public security. However, there is no definition of serious grounds in the regulations.

EEA nationals with 10 years’ residence in the UK

The regulations state that a decision to refuse admission, exclude, revoke residence or remove you from the UK is only permitted on imperative grounds of public security. Where an EEA national either:

• Has resided in the UK for a continuous period of at least 10 years prior to the decision*
• Is  under the age of 18, unless the relevant decision is in the best interests of the person concerned, as provided for by the Convention of the Rights of a Child.

Imperative grounds are not defined in the Regulations and may be interpreted to include serious criminality, such as drug dealing as part of an organised group.

*Any time spent in prison or a young offenders institute does not count as legal residence and will interrupt continuity of residence when assessing whether you or a family member has accrued 10 years residence.

What is meant by ‘fundamental interests of society’

Schedule 1 of the EEA Regulations 2016 states that consideration will be given to the fundamental interests of society when determining whether it is appropriate to restrict a person’s free movement on the grounds of public policy and public security.

A list of the types of behaviour considered contrary to each fundamental interests of society is set out below with some examples provided. This is not an exhaustive list.

The fundamental interests of society include:

Behaviour which may lead to a public policy decision

Criminality

Your criminal behaviour will be taken into account when making a decision on public policy or public security grounds even if you have not received any criminal convictions providing there is sufficient, corroborated law enforcement evidence to underpin a decision. Criminal behaviour of this type may be evidenced by either a domestic or overseas conviction.

Persistent offending is considered contrary to the fundamental interests of society. Persistent offending includes offences, which if taken in isolation, may otherwise not meet the requirements of regulation 27.

An individual is considered to be a persistent offender if they show a pattern of offending over a period of time. This can mean a series of offences committed in a fairly short time frame, or which escalate in seriousness over time, or a history of minor offences. Non-custodial sentences, suspended sentences, restraining orders, anti-social behaviour orders, cautions etc can all be taken into consideration.

Marriage, civil partnership and durable partnership of convenience

The EEA Regulations 2016 define a marriage or civil partnership of convenience as a marriage or civil partnership entered into for the purpose of using these regulations as a means to circumvent:

• Immigration Rules applying to non-EEA nationals
• Any other criteria that the party to the marriage or civil partnership of convenience would otherwise have to meet in order to enjoy a right to reside under these regulations

A non-EEA national who has entered into a marriage or civil partnership of convenience will be treated as an immigration offender.

Fraudulently obtaining a right to reside

Paragraph 6(a) of the Regulations state that it is consistent with public policy and public security requirements to refuse, terminate or withdraw an EEA right where it involves obtaining, attempting to obtain or assisting the fraudulent acquisition of a right to reside under EEA Regulations.

Evasion of taxes and duties

The evasion of taxes and duties is considered contrary to the fundamental rights of society. If you are found to have in your possession goods such as tobacco or alcohol in large quantities which are not consistent with personal use, consideration will be given as to whether they are attempting to evade the payment of duty.

Decision to refuse admission to the UK

Border Force officers can refuse admission to an EEA national or their family members on the grounds of public policy or public security. Refusal will be given to anybody subject to a valid deportation or exclusion order unless they are seeking entry to attend an appeal hearing and have permission to do so.

If the decision is made to refuse entry then your passport will not be endorsed.

Once you’ve passed through immigration control, you are considered to have been admitted to the UK unless you entered in contravention of a deportation order or exclusion order.

A decision to grant admission does not necessarily preclude a decision being made on public policy or public security grounds at a later date.

Decision to refuse, renew or revoke documentation

Applications to issue or renew documentation may be refused on public policy or public security grounds.

A decision may be made to revoke documentation where you cease to have a right of residence on public policy grounds or where you’ve never had a right of residence in the first place.

Decision to deport from the UK

The EEA Regulations allows for the deportation of EEA nationals or their family members on the grounds of public policy or public security. The government will pursue a deportation order when a person’s conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

You will be allowed one month to leave the UK voluntarily, beginning on the date on which you are notified of the decision to remove you although you may be removed earlier:

• In duly substantial cases of urgency (for example if a prisoner was involved in prison riots)
• Where you are detailed pursuant to the sentence or order of any court
• Where you have entered in breach of a deportation or exclusion order.

If you are liable to deportation you must be notified in writing and given the opportunity to make representation. You must be advised of the public policy or public security reasons for your intended removal from the UK.

Once the deportation order is in force, your free movement rights are restricted and you are required to leave the UK. If you do not comply with the requirements to leave then your removal can be enforced.

Deportation orders remain in place until revoked by the Secretary of State for the period specified in the order. Once deported, you are prohibited from returning to the UK unless you successfully apply to have the order revoked or until the end of the order specified.

Re-entry to the UK following a deportation order

If you’ve been deported from the UK on the grounds of public policy or public security, you will be prohibited from entering the UK until the deportation order is revoked or for the period specified in the deportation order.

The EEA Regulations introduced some time-limiting deportation orders where it was felt that an indefinite re-entry ban would be disproportionate. The table below gives an indication of the length of the re-entry restrictions. These are only a guide and individuals will be dealt with on a case-by-case basis.

Practical effects of a public policy or public security decision

The decision to remove somebody on the grounds of public policy or public security will only be taken after careful consideration of an individual’s circumstances and the risk they pose.

If you are subject to a deportation decision, then it is possible that restrictions will be placed on your residency and/or employment.

Appealing a decision

Where a public policy decision was made before 1 February 2017 under the EEA Regulations 2006, an appeal against the decision will be considered under the EEA Regulations 2006.

Where a deportation decision was made on or after 1 February 2017 under the EEA Regulations 2016, an appeal against the decision will be considered under the EEA Regulations 2016.

If you’ve been served with an EEA decision, you can appeal against that decision to the First-tier Tribunal. In the appeal you will have to demonstrate why the EEA decision was wrong. Further information can be found in the Home Office Rights of Appeal document.

The EU Settlement Scheme – settled and pre-settled status

Our information the EU Settlement Scheme is available here.

Useful links

Below you will find links to useful websites relating to this page. More specific details (including addresses and telephone numbers) of some of the organisations listed below can be found here.

• Home Office – A government  department, responsible for immigration, security and law and order.
• Brexit – What you need to know as an EU Citizen living in the UK – Guide published by EU Representation in the UK
• Read our latest updates on leaving the EU

More information

1. For practical information – More information on housing and living in the UK
2. Questions – If you have any questions about this, you can contact our helpline.

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