This month we’ve written a further article for Insidetime ‘Through the Gate’ section which highlights the impact of a criminal record when making a settled status application and travelling to the EU with a criminal record after Brexit.

After agreeing a trade deal with the EU, on 1st January 2021 the UK left the single market and customs union. Since then, our helpline has started to receive calls from people with a criminal record worried that leaving the EU will stop them from visiting Europe for a holiday.

The majority of people leaving prison will be on licence, which can make travelling abroad difficult – a standard licence condition is … ‘not to travel outside the UK without obtaining the prior permission of your supervising officer.’ But will a trip to Europe be possible once your licence ends?

The European Commission has previously stated that after Brexit, UK passport holders will need to apply for a European Travel Information and Authorisation System (ETIAS) visa waiver; similar to an American ESTA. This is likely to cost around £6 and will be valid for several years. However it has recently been reported that the introduction of the System is likely to be postponed until late 2022/early 2023.

The ETIAS visa waiver will require applicants to answer basic questions about their past criminal convictions, namely: ‘Have you been convicted of any criminal offence over the previous 10 years and in the case of terrorist offences, over the previous 20 years?’

The answers you give will be checked against the European Criminal Records Information System (ECRIS) and Interpol.

The decision on whether or not to grant you an ETIAS visa waiver will depend on the specifics of your case. If you’ve been convicted of terrorism related offences or sex-trafficking, human trafficking, sexual exploitation of children, murder or rape, you’re likely to be denied entry into Europe.

If your offence falls outside the scope of the question (for example, if you were convicted of theft 12 years ago), then you can answer ‘No’ and your criminal record shouldn’t be a barrier.

If you’re on the Sex Offenders Register

Since 1st January 2021, access to the Schengen Information System (SIS), the information sharing system for security and border management in Europe, has been removed. This means that the police will no longer be able to use SIS to log travel details of anybody travelling to the EU who is on the Sex Offenders Register (SOR).

Although there is no direct replacement for SIS, we’ve been told that the police will continue to use Europol and other relevant data systems if they feel it necessary to share information with the EU. They can also make use of Interpol Notices to monitor the travel of individuals on the SOR across international borders.

Applying for settled status if you’re an EU citizen and have a criminal record

The deadline for applying for settled status is 30th June 2021, but it’s important that you don’t leave it until the last minute to apply. To be granted settled status, you will usually need to have been living in the UK continuously for five years – referred to as ‘continuous residence’.

If you’re currently in prison, you will need at least five years’ continuous residence from the day you are released to be considered for settled status, unless you already had five years’ continuous residence before you were sent to prison. (For example, if you have lived in the UK for less than 5 years, went to prison before 31st December 2020, and are due to be released after 1st January 2021 your application for settled status is likely to be refused. This is because your continuous qualifying residence could not begin until after 31st December 2020).

If you’re considering applying whilst in prison, then you’ll probably need to use a paper form given the difficulties you may have in accessing either your identity documents or the online application form. To request a paper form you should contact the Settlement Resolution Centre (telephone number 0300 123 7379). Once you’ve completed the form, you’ll need to request the relevant identity documents from the prison (we’ve been told that prison governors will make these accessible) before you send it.

As part of the application process, you will be asked for details of your convictions. The Home Office will then check your application against relevant criminal record databases, including the Police National Computer. Your application may be referred to the Immigration Enforcement team for further assessment if:

• In the last five years you have received a conviction which resulted in a prison sentence;
• You have ever received a conviction which resulted in a prison sentence of 12 months or more for a single offence;
• In the last three years, you have received three or more convictions (including non-custodial sentences) unless you have lived in the UK for five years or more;
• You are currently in prison and your case is awaiting deportation consideration.

If your application is refused you will usually be given the opportunity to appeal to the Home Office against the decision. We would always recommend seeking specialist advice prior to making an appeal and the prison library or resettlement department should be able to provide you with details of organisation that can assist you with this.

What you’ll find in this post:

• Changes to the immigration rules for non-UK citizens
• Travelling to the EU with a criminal record
• Travelling to Europe if you’re on the Sex Offenders Register

Changes to the immigration rules for non-UK citizens

On 22 October 2020, the Home Office announced further details of their new Immigration Bill, which created many ‘rules’ to come into effect on 1 December 2020.

The new points-based system, sets out a specific set of requirements for which all applicants will score points.

The Government’s points-based system aims to create a ‘high wage, high skill, high productivity economy’ which is likely to make it harder for workers from certain sectors to come to the UK, for example those working in social care. The new Bill also sets out the grounds upon which an application must (mandatory) or may (discretionary) be refused due to an applicant having a criminal record.

Mandatory grounds

Immigration rules state that permission must be refused where the applicant:

• Has been convicted of a criminal offence in the UK or overseas for which they have received a prison sentence of 12 months or more; or
• Is a persistent offender who shows a particular disregard for the law; or
• Has committed a criminal offence, or offences, which has caused serious harm.

Discretionary grounds

Immigration rules state that permission may be refused where the applicant has been convicted of a criminal offence in the UK or overseas for which they received:

• A prison sentence of less than 12 months.
• A non-custodial sentence, or received an out-of-court disposal that is recorded on their criminal record.

There are no timescales to these discretionary grounds unless you are applying as a visitor, or wish to enter the UK for less than 6 months. In these cases, permission will not be refused providing more than 12 months have passed since the end of your sentence (or date of conviction in the case of a non-custodial sentence).

It’s important that you disclose all criminal convictions when making your immigration application as the Home Office are likely to view your non-disclosure as dishonesty (even if you’ve made a genuine mistake); dishonesty is another ground for refusal.

Further information can be found in the Home Office guidance, Grounds for refusal – Criminality.

If you are a non-UK student wishing to study in the UK, you can apply for a student visa six months prior to the start of your course. You will have to prove that you:

• Have an offer from an approved educational institution.
• Can speak English.
• Are able to support yourself during your studies.

Travelling to Europe from 1 January 2021

Following the government’s announcement of a trade deal with the EU, the UK left the single market and customs union on 1 Jan 2021. Travellers to the EU are likely to notice some changes when they travel to the EU in future.

Travelling to the EU with a criminal record

The European Commission has previously stated that, after Brexit, UK passport holders will need to apply for an ETIAS (European Travel Information and Authorisation System) visa waiver. This is similar to an American ESTA, will probably cost around £6 and will be valid for several years. It was recently announced that the introduction of the system would be postponed until 2023.

The ETIAS visa waiver will require you to answer basic questions about any past criminal convictions you may have. Your answers will then be checked against the European Criminal Records Information System (ECRIS) and Interpol.

If the ECRIS does not find any record of you in the database, you will automatically receive the approved document via email.

In the event that ECRIS does find a record of you, your application will need to be assessed manually. The decision as to whether or not to grant you the ETIAS visa waiver will depend on the specifics of your case. Any person suspected of being involved in terrorism-related offences or crimes such as sex trafficking, human trafficking, sexual exploitation of children, murder or rape are likely to be denied entry into Europe.

If your offences are minor, then you will generally be allowed entry into Europe.

Travelling to Europe if you’re on the Sex Offenders Register

As of 1 January 2021, the UK has no access to the Schengen Information System (SIS), the information sharing system for security and border management in Europe. This means that the police will no longer be able to use SIS to log details of any travel plans.

We understand that although there is no direct replacement for SIS, Visor (PPU) officers can still use the Interpol Criminal Information System. Where they believe “a person to be a possible threat to public safety”, the police may decide to issue a Green Notice.