Changes to immigration rules and travel to Europe from 1 January 2021

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.