Russia may not be high on everyone’s list of holiday destinations but it’s a country that has opened up tremendously over the last few years and is now seen by many as a fascinating country to visit.
The aim of this page is to provide details of the documentation needed to travel to Russia and whether it’s necessary to disclose details of your criminal record. It’s part of our information on travelling abroad.
Why is this important?
The majority of people visiting Russia will need to get a visa before they travel and the visa process can be quite strict. When making an application you should make sure that the visa type you’re applying for is consistent with the purpose of your visit and that all the information contained in the visa document is correct.
It’s important that you’re aware of any conditions attached to your visa and that you strictly adhere to these. Overstaying your visa or breaching the visa conditions can result in fines, court hearings, deportation or possibly a ban from re-entry.
Do you need a visa to enter Russia?
Most foreign nationals will need to have an entry visa to travel to Russia. If you are transiting through Russia but won’t be leaving the airport then you won’t need a visa.
There are many types of visa available but a tourist or business visa will usually be suitable for most travellers. You’ll need to make the initial application online but will then need to visit a Visa Application Centre to submit your biometric data; these are located in London, Manchester and Edinburgh.
Applying for a visa
Your visa application will need to be made online. If you are based in the UK and aged 12 or over you’ll also need to visit a Visa Application Centre to submit your biometric data (scanned fingerprints).
What questions are asked about criminal records on the visa application form?
There are several questions on the application form relating to war crimes, crimes against humanity and membership of recognised terrorist organisations.
There is one question which specifically asks about your criminal record, namely:
Have you ever been charged with a criminal or administrative offence (including traffic violation) in Russia or any other country? Yes/No”
The question only allows you to give a ‘Yes’ or ‘No’ answer; it does not ask you to provide specific details about your criminal record.
On submitting your online form, you’ll be provided with a list of documents that you’ll need to take to the Visa Application Centre. It’s likely that under the ‘Additional Documents’ you’ll be asked to provide further evidence of your criminal record.
How does the visa process work?
Once you’ve completed and submitted your online visa application form, print it off and sign it.
You’ll receive a ‘next steps’ email which will provide you with details of what documents you need to take to the Application Centre (see below).
The Application Centre will contact you to confirm a suitable day and time to provide your biometric data and any other information. This can take up to 1 hour depending on the number of applicants being seen.
In some cases (for example where you’ve disclosed a criminal record) you will be invited for an interview to discuss your application further.
What documents will you need?
When you visit the Visa Application Centre, you’ll need to take the following documents with you:
You’ll need to print off and sign the completed online application form.
Your passport must be valid for at least 6 months after the planned date of departure from Russia and you must have a blank visa page if you’re applying for a single-entry visa or two blank pages for a double-entry visa.
One passport sized photograph which is no older than 6 months.
The tourist voucher is a document that confirms your itinerary, hotel you are staying in and any excursions whilst you are in Russia. It will also include a tourist reference number. The confirmation of invitation is typically issued by a licensed UK or Russian travel company. The voucher and confirmation of invitation must have the same reference number.
An official document issued by a company that has been licensed by the Russian Ministry of Internal Affairs.
These may include any additional documents such as those for nationals or people applying outside their home country, children travelling alone, auto-tourist visas and documents that are required for self or unemployed travellers.
What happens if you’re invited to an interview?
In some cases the consulate may wish to interview you before making a decision about your visa. The purpose of the interview is usually to gather further information about you and your trip.
Will your application be successful?
Most people who apply for a Russian visa don’t have any problems in obtaining one. However, if you are denied a visa, the consular authorities generally won’t inform you of the reason for the rejection, citing national security reasons. On top of not giving you any explanation, they will not refund your application fee.
Refusals are generally related to the documentation you have submitted or the characteristics of the applicant. Issues with documentation can usually be solved easily by providing missing data or correcting anything that’s wrong.
If you have answered ‘Yes’ to the question relating to criminal records your application may be refused on the basis that ‘The applicant is considered a danger to the Russian authorities’.
There is very little information available which sets out the details of the types of offence or sentence/disposal that would lead to an application being refused. However, it does seem that the majority of visas are approved and only declined in exceptional cases.
Discuss this with others
Read and share your experiences on our online forum.
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.
This is a short information page with details of those employers that have signed up to the Ban the Box campaign. The aim of this page is to develop the list of Ban the Box employers produced by Business in the Community (BITC) into information more aimed at individuals with a criminal record, including the name and contact details of the employer as well as setting out the point at which the employer may ask you to disclose your criminal record.
Gaps in the table mean that we’ve been unable to get clarification from the organisation as to when they ask applicants to disclose their criminal record. We will be continuing to update and improve the information available.
Where we have concerns that an organisation which is signed up to the campaign is not doing what they say they do, we will look at raising this both with the employer and BITC. If you have any personal experience of applying for work with one of these companies (good or bad) please let us know by emailing feedback@unlock.org.uk.
Is it recorded on the Police National Computer (PNC)?
Yes
Is it classed as a conviction?
Yes
How long will it be on my record?
It will remain on the PNC indefinitely and can still be mentioned in future criminal proceedings even after it has become spent.
When does it become spent?
The rehabilitation periods for extended sentences are quite complicated as there are effectively 3 rules:
Extended sentences with a conviction date before 4 April 2005 the rehabilitation period is calculated in line with the length of the sentence.
Extended sentences with a conviction date between 4 April 2005 and 2 December 2012 will never be spent if the offence was committed on or after 4 April 2005. Therefore, where an extended sentence or licence has a conviction date between 4 April 2005 and 2 December 2012 the date the offence was committed will need to be established.*
Extended sentences with a conviction date on or after 3 December 2012 are all excluded from rehabilitation and will never be spent.
* The Police National Computer (PNC) doesn’t state the date that an offence was committed and the DBS will need to contact the local police force to establish this. If the information is not available, they will use the conviction date.
When do I have to declare it?
You do not have to declare it after it is spent except for an occupation exempt from the Rehabilitation of Offenders Act, like working with children. Before it is spent you’ll need to declare it, when asked, to employers, insurers and others.
Is it disclosed on DBS checks?
Yes, it will be disclosed on both standard and enhanced checks. Once it becomes spent, it won’t be disclosed on a basic check.
Additional information
Extended Determinate Sentence (EDS)
If the court assesses an individual to be dangerous, they may be sentenced to an extended sentence. The extended sentence is a determinate sentence comprising a custodial term plus an extended period on licence.
The extra period on licence in the community will be determined by the judge based on the ‘length of time considered necessary for the purposes of protecting members of the public from serious harm’. The period should not exceed 5 years for a specified violent offence and 8 years for a specified sexual offence. The total of the custodial term and the extended licence must not exceed the maximum penalty for the offence.
The individual has been convicted of a specified offence (a sexual or violent offence listed in Schedule 15 of the Criminal Justice Act 2003) whether the offence was committed before or after this section came into force;
The court considers that the individual presents a substantial risk of causing serious harm through re-offending by committing a further specified offence. The “significant risk” test is the same as the test for IPP and therefore they must meet the dangerousness threshold;
The court is not required to impose a sentence of imprisonment for life, and
Condition A or B is met.
Condition A: at the time the offence was committed the individual had been convicted of a sexual or violent offence listed in Schedule 15B of the CJA 2003.
Condition B: that the current offence merits a determinate sentence of at least 4 years.
Under the pre 3 December 2012 arrangements, release from an extended sentence under the Criminal Justice Act 2003 is at the half way point of the custodial sentence.
For the new EDS (under section 124 of the LASPO Act 2012), release will normally be at the two thirds point of the custodial sentence, unless the custodial sentence is 10 years or more, or the sentence is imposed for an offence listed in Schedule 15B of the CJA 2003, when the case must be referred at the two thirds point to the Parole Board, who will consider whether it is no longer necessary for the protection of the public for the individual to be detained.
Extended Sentence for Public Protection (EPP)
This type of sentence was introduced in April 2005 by the Criminal Justice Act 2003. It was replaced by Extended Determinate Sentence in December 2012 (see above).
For an EPP to be imposed, your offence would need to have been committed on or after 4 April 2005 and you would need to have been convicted of that offence before 3 December 2012.
If you were sentenced to an EPP before 14 July 2008 you will be subject to Parole at the halfway point of your custodial period. If you’re not released on Parole you will be released automatically at the end of the custodial period.
If you were sentenced to an EPP on or after 14 July 2008, you will be automatically released at the halfway point of your custodial sentence.
After release you will be subject to licence until the end of what is left of the custodial period plus the extended period.
If you breach the conditions of your licence, you may be recalled to prison.
It can sometimes seem that if you have a criminal record, your job opportunities become very limited. Job sites don’t always have roles that fit your skills and qualifications and you may be loath to use recruitment agenciesbecause you’re worried about who they will disclose your criminal record to.
The aim of this page is to highlight how there are jobs out there, but they’re not necessarily always advertised; these are often referred to as the hidden job market.
Why is this important?
Many employers, especially smaller companies, prefer not to advertise their jobs. Advertising can be expensive and time consuming with no guarantee that they’ll always be able to recruit the right person.
If you’re looking for a job then it’s important to know how you can access these hidden jobs and how you go about approaching employers that don’t want you to complete an application form or hand over a CV.
What is the hidden job market?
The hidden job market consists of opportunities that are not publicised, for example one’s that you won’t come across in newspapers, recruitment agencies or the job centre. Most ‘hidden’ jobs are in small and medium sized enterprises (businesses that employer fewer than 250 people).
If you feel that you’re not being invited to interviews when you’re applying for jobs using application forms or CV’s or, you’re getting interviews but they never progress to a job, then the hidden job market may help you to find other opportunities.
What benefits are there of exploring the hidden job market?
As these types of vacancies are not widely publicised, you’ll generally find that you’ll face less competition for any job that you apply for. In addition, you’ll be able to make your job searches far more specific and targeted.
You might also find that, because of the size and nature of the roles, they might be less likely to ask about criminal records or do criminal record checks.
How do you access the hidden job market?
It’s thought that approximately 80% of all jobs are never advertised. They are created for people who come to the employer’s attention either from referrals from other reliable and respected employees or associates or by direct contact from an individual.
Some of the ways of accessing the hidden job market are:
Networking
You’re probably already skilled in networking without realising it. The term can be off-putting but networking basically involves getting in touch with your personal and professional contacts, informing them that you’re looking for work and asking them to point you in the direction of anybody they know that may be able to help you.
Cold calling
Cold calling is generally seen as harder than networking as it means contacting an employer without any referral or connection. You should take time to research any company you’re contacting and try to identify the person within the organisation that may have a suitable vacancy. You may find that you’ll get a significant number of rejections but you may find that some organisations will be happy to keep your CV on file for at least six months.
Using social media
Recruiters often search LinkedIn to look for candidates for their unadvertised jobs. It’s a good idea therefore to set up a recruiter-friendly LinkedIn profile with details of your particular skills set and experience. In addition to this, there are hundreds of professional networking groups on LinkedIn which you may want to join. You could mention in your introduction that you’re looking for work so that other members can get in touch if they have a suitable opportunity.
Twitter can be an excellent source of jobs. They’re not advertised in a conventional way but a quick search can show tweets between job seekers and recruiters. It’s easy to join Twitter and start following potential employers and their recruiters. You can make a direct contact with other subscribers so you can tweet an HR manager of an organisation to ask whether they have any suitable vacancies. You won’t always get a response, but Twitter is a friendly platform.
Get alerts straight to your inbox
Try using Google Alerts to get regular email notifications of events that may lead to a job opportunity.
Attend trade fairs and conferences
You’ll often find that these types of events gather the main employers in your field in one location. Events are usually advertised in newspapers or online. When you attend, make sure that you take plenty of copies of your CV with you which you can hand out to prospective employers.
How do you get started?
Before you start networking or cold calling, you need to make sure that you’re properly prepared. This might include some, or all, of the following:
Make a list of at least five skills that you’re good at and that you enjoy. For each of these, think about how you can explain or demonstrate the skill – remember you’re going to need to stand out from the crowd!
Consider some of the difficult questions that an employer may ask you about your criminal record and put together some answers to them.
Identify two areas that you’d be interested in working in – for example construction, hospitality etc.
Identify your preferred jobs within these areas – for example roofer, bricklayer, receptionist etc.
Develop some telephone scripts to use when (a) you’re finding out information from the employer about a specific job and (b) marketing yourself to an employer. Practice your script with somebody you trust to give you constructive feedback.
Make a list of people within your own network. This could be family, friends, people from your gym etc – anybody that you think might be able to give you a lead.
Put together a list of ten employers that you are going to cold call – this could be companies that you know or those you’ve found from the internet or newspapers.
At this stage, you’ll need to give some thought to how you’re going to get in contact with the employers. This could include:
A CV and speculative letter – If there are gaps in your CV then a skills-based CV will usually work better than a qualification or chronological CV. Make sure that your letter and CV do not highlight anything that will raise concerns with an employer, for example don’t provide details of your criminal record or state that you’ve spent time in prison.
A personal visit – This can work extremely well but you need to ensure that you:
Have details of a named person to speak to, this could be somebody in HR or the head of a specific department.
Are ready to hand over your CV and letter.
Have your answers ready to any potentially difficult questions that you might be asked about your criminal record or gaps in your CV.
Ready to highlight your skills and experiences.
Telephone calls – Cold calling somebody can be difficult, and you may find it easier to do a ‘research call’ first. Research calls will help you to identify any particular skills or knowledge that the employer is looking for and will help you to tailor your CV and letter to match their criteria. It may help you to increase your confidence for when you need to make ‘marketing’ calls.
The do’s and don’ts of speculative job applications
If you find a job being advertised by a company but it’s not right for you, there’s no harm in getting in touch with a copy of your letter and CV.
Whilst it’s okay to send in a speculative application on the back of another role, we’d advise against sending one if you’ve already applied for a role with the company. The company could still have your details and, if you’re right for the job, they might have already put you in the ‘maybe’ pile. However, if they’ve already decided that you’re not the right fit, then another application isn’t going to get you any further.
It’s important to be polite and personable in all contacts and correspondence.
When you’re applying for a job, it’s essential that you include some kind of covering letter or email to explain why you’re sending your CV. Explain the reason for the speculative application and why you’d be a good fit for their company. If you don’t send some kind of covering letter there’s a good chance that your application will end up in the bin or the ‘deleted items’ folder.
Make sure you provide your contact details and explain what your current work situation is. This is something that potential employers will want to know so, providing it in the covering letter will save time.
Be careful not to come across as too pushy. You want to show that you’re enthusiastic to work for the company but you don’t want to be seen as desperate or arrogant. Instead of finishing your letter with “I can’t wait to meet you to discuss my new role at your company” you could try something like “I’d be excited to discuss any potential future opportunities at your company”.
Once you’ve submitted your application, it’s a good idea to follow up a few days later to check that it’s been received.
Discuss this with others
Read and share your experience on our online forum.
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.
Identifying whether your offence is a Crime Involving Moral Turpitude (CIMT)
This is a short information page about moral turpitude.
The aim of this page is to set out a list of UK offences and highlight those which would not be deemed to be a Crime Involving Moral Turpitude (CIMT) and which would therefore enable you to travel to the USA using the Visa Waiver Programme (ESTA).
Introduction
Moral turpitude is a legal concept in the United States and, although there is no set statutory definition, crimes involving moral turpitude (CIMT) have been identified in the US as those that involve conduct that is shocking to the public conscience; vile or depraved or contrary to the rules, morality, and duties of society.
This is important because, if your offence is a CIMT, you will normally have to apply for a visa before you can travel to the US.
From the information available from the US Embassy, it can be difficult to match a UK offence with a US equivalent and therefore not always easy to establish whether your offence would be deemed to be a Crime Involving Moral Turpitude (CIMT). To help you identify whether your offence is a CIMT (or not), we’ve put together a list of the 80 most common UK offences.
Using the table
The table below sets out a list of the 80 most common UK offences in alphabetical order. Those marked ‘Yes’ would, in our opinion, be deemed to be a crime involving moral turpitude.
Where we don’t feel that an offence is a CIMT, we’ve set out our reasons for reaching that decision.
If your offence is not a CIMT then, you can travel to the US for tourism or business stays of 90 days or less without obtaining a visa; you would be able to travel using the Visa Waiver Programme (ESTA).
Offence
Is a crime involving moral turpitude
Why
Abduction
Yes
Affray
The offence is NOT a CIMT if you are able to demonstrate that there was no intent to harm persons or things.
Arson & attempted arson
Yes
Assault occasioning actual bodily harm (ABH)
If you are able to demonstrate that there was no intent to cause ABH then the offence is NOT a CIMT.
If the ABH was an act of domestic violence then it IS a CIMT.
Assault occasioning grievous bodily harm (GBH)
If you are able to demonstrate that there was no intent to cause GBH then the offence is NOT a CIMT.
If the GBH was an act of domestic violence then it IS a CIMT.
Assaulting a police constable
The offence is NOT a CIMT if it did not result in bodily injury or if the offence was not wilful.
Assisting an offender
Yes
Battery
The offence is NOT a CIMT if you are able to demonstrate that there was no evil intent or depraved motive.
Benefit fraud
Yes
Blackmail
Yes
Bigamy
Yes
Breach of the peace
Crimes of regulatory character such as this one are NOT a CIMT.
Brothel-keeping
Yes
Buggery
The UK Parliament repealed buggery laws in England and Wales in 1967.
Burglary
Yes
Carrying out regulated activity without being registered
On its own it's unlikely to be a CIMT. However, it's likely to be linked to a charge of 'making false representation' which IS a CIMT.
Causing/inciting a child to engage in sexual activity
Yes
Child neglect
Yes
Common assault
Common assault is the equivalent of the US simple assault. If there is no evil intent nor the use of a dangerous weapon, it is NOT a CIMT.
Conspiracy to commit murder
Yes
Conspiracy to defraud
Yes
Contempt of court
Since contempt of court is not usually motivated by vile intent, it is NOT a CIMT.
Criminal damage
The offence is NOT a CIMT if the damage was to private property. For all other criminal damage offences, it IS a CIMT.
Cruelty to animals
There is no mention of this offence in the list of crimes included in the definition of moral turpitude.
Cruelty to children
Yes
Death by dangerous driving
Yes
Downloading indecent images of children
Yes
Driving a motor vehicle whilst under the influence of drink or drugs
The offence in itself, without any aggrevating factors, is NOT a CIMT.
Driving without due care and attention
The offence, if not carried out with an evil intent, is NOT a CIMT.
Drunk and disorderly
Crimes or regulatory character such as this are NOT a CIMT.
Failing to notify a change of circumstances
Yes
Usually linked to benefit fraud and IS a CIMT.
Failing to provide a specimen
This offence is not serious enough and therefore is NOT a CIMT.
Failing to stop after an accident
Since the offence is not usually motivated by a vile intent, it is NOT a CIMT.
False accounting
Yes
Fly-tipping
Dumping waste is NOT a CIMT.
Forgery
Yes
Fraud by abuse of position
Yes
Going equipped for theft
Handling stolen goods
If you are in possession of property which you have no knowledge is stolen, then this is NOT a CIMT. If your are aware, then it IS a CIMT.
Harassment
Would NOT be a CIMT unless it was racially aggravated.
Hijacking
Yes
Human trafficking
Yes
Importation
Yes
Indecent assault
Yes
Indecent exposure
Yes
Kidnapping
Kidnapping is NOT a CIMT.
Aggravated kidnapping IS a CIMT.
Malicious wounding
Yes
Making false representation
Yes
Making or possessig explosives
If there was no intent to cause harm it would NOT be a CIMT.
Manslaughter
Yes
Murder
Yes
Obtaining property by deception
Yes
Outraging public decency
Yes
Possession of a controlled drug
Simply possessing or using a controlled substance is NOT a CIMT.
Possession of class A, B or C drugs
If you were in possession of class A,B or C drugs, this is NOT a CIMT. If you had the intention of distributing them, then it IS a CIMT.
Possession of a firearm
Possession of a firearm without any aggravating factors (such as illicit trafficking in firearms, or transferring of a firearm knowing that it will be suse to commit a crime) is NOT a CIMT.
Pessession of indecent images of children
Yes
Possessing, making and distributing indecent images of children
Yes
Prostitution
Yes
Racially or religiously aggravated assault
Yes
Rape
Yes
Receiving stolen goods
If you are in possession of propery which you have no knowledge is stolen then this is NOT a CIMT. If you are aware, then it IS a CIMT.
Resisting arrest
The offence, if it was not conducted with inherently vile motives, is NOT a CIMT.
Robbery
Yes
Sexual assault
Yes
Shoplifting
Yes
Soliciting
Yes
Stalking
Yes
Taking a motor vehicle without consent
Yes
Theft by employee
Yes
Theft from dwelling
Yes
Theft from non-dwelling
Yes
Threatening behaviour
If you have been convicted of threatening behaviour (under Section 4 of the Public Order Act) this is NOT a CIMT.
Threats to kill
Yes
Travelling on a railway without paying a fare
If you have received a FPN then this is NOT a CIMT. If you have been prosecuted in court then this would be dealt with as fraud and IS a CIMT.
Trespass
Simply trespassing is NOT a CIMT.
Supplied of a controlled drug
Yes
Supply of class A, B or C drug
Yes
Using threatening, abusive, insulting words or behaviour with intent to cause fear
Violent disorder
Voyeurism
Yes
Wasting police time
* The mere possession of a controlled substance is not sufficient for it to be deemed a Crime Involving Moral Turpitude (INA 212(a)(2)(A)(i)(I)). However, answering ‘Yes’ to the question on the ESTA form which asks ‘Have you ever violated any law related to possessing, using or distributing illegal drugs‘ would make you ineligible to travel under the Visa Waiver Programme.
Useful links
Below you will find links to other useful information relating to travelling to the USA.
As this page is new, we’re keen to get your thoughts. Let us know what you think of it and how it could be improved by emailing us at feedback@unlock.org.uk or completing our feedback form.
GDPR and data protection – Guidance for individuals
On 25th May 2018, the General Data Protection Regulation (GDPR) came into force and the Data Protection Act 1998 was replaced by the Data Protection Act 2018 (DPA18) to incorporate the GDPR provisions which are specific to the UK.
Together, this legislation significantly strengthens the rights individuals have over processing of their personal data. Individuals now have more power to demand that companies reveal or delete any personal data they hold and, where data protection breaches are proven, enforcement action could have serious consequences for organisations with the maximum fine now reaching the higher of £17.5 million or 4% of the company’s annual global turnover.
GDPR and the DPA18 applies to the processing of all personal data. However, criminal records data (including cautions, convictions and allegations) are a separate category of data (“criminal offence data”) and, where organisations collect this information as part of their recruitment process, certain safeguards must be put in place to protect individuals.
This guidance deals specifically with the use of GDPR and DPA18 for recruitment purposes and the collection and processing of criminal record data. It sets out what personal data employers are allowed to collect and process, and the steps you can take if you believe an employer has breached GDPR/DPA18.
What difference will GDPR make to the recruitment process?
From the outset of the recruitment process, employers will ask you to share a lot of personal data (your name, address, contact details, qualifications, work experience etc) to enable them to contact you and assess your suitability for a role.
It has become common practice for many UK employers to ask prospective employees about their criminal convictions and to also carry out formal criminal record checks. The GDPR does not regulate an employer’s ability to carry out criminal record checks but rather an employer’s ability to process the data relating to criminal convictions following these checks.
As a result of GDPR, employers will need to more carefully consider what information it is necessary for them to have and, at what stage of the recruitment process they need it. They will have to be able to fully justify the processing of criminal record data especially where there is no actual legal requirement to do so.
The lawful basis and condition for processing criminal record data
Where an employer wants to process data relating to criminal convictions, they must have a lawful basis for doing so under Article 6 of the GDPR. Every piece of personal data held by an organisation must be justified according to one of six lawful bases. These are:
Where there is a clear reason why an employee’s contract would need an employer to collect criminal record data. For example a recruitment agency providing nursing or teaching staff.
Where the processing is necessary for the employer to comply with the law. For example a school, nursery or care home who, as a result of regulations would be required to carry out enhanced Disclosure and Barring Service checks.
Where processing is necessary to save or protect someone’s life. It is unlikely that any employer would be able to use this as a suitable lawful basis.
Where the processing is necessary as part of official tasks or to perform functions which are in the public interest. For example prison or police officers.
Where an employer has been given explicit and informed consent from an applicant/employee to process personal data. Any employer could use this basis but they would need to offer genuine choice and would have to allow you to withdraw your consent.
Where the processing is necessary for the legitimate interests of the employer and an employer can protect the rights of the individual. Any employer can use this basis but their purpose must be clearly defined.
We believe that the majority of employers are likely to rely on consent, legal obligation and legitimate interest as their lawful basis.
In addition to having a lawful basis, employers who are processing criminal records data will also need to identify a condition for processing. Schedule 1 of the DPA18 states that the condition will be met if:
The processing is necessary for the purpose of performing or exercising obligations or rights which are imposed or conferred by law on the controller or the data subject in connection with employment, social security or social protections, and
The controller has an appropriate policy document in place.
To meet the condition, employers will need to demonstrate that processing is both necessary and have an appropriate policy in place.
Can employers ask about criminal record data and carry out criminal record checks under GDPR?
Asking about criminal records
If an employer wants to know whether you have a criminal record, they cannot ask about cautions or spent convictions unless you are going to be employed in a role which is listed in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (this would include doctors, solicitors, anybody working with children or vulnerable adults). These employers have a legal obligation to carry out a standard or enhanced DBS check.
For all other roles, an employer can only ask you to:
Voluntarily disclose whether you have any unspent convictions; or
Agree to a basic criminal record check through the Disclosure and Barring Service
If you’re being asked to disclose any unspent convictions, then an employer will need to provide you with details of their lawful basis for asking and also a copy of their privacy policy which should set out the data retention periods and who your data will be shared with.
We do not believe that asking all applicants to disclose at application stage would meet the GDPR necessity test as it is neither a specific nor targeted means of collecting criminal records data and could potentially be a breach of the GDPR and DPA18. Unlock’s guidance for employers on GDPR strongly encourages employers to join the Ban the Box campaign and remove questions about criminal records from application forms.
Automated decision making
Under GDPR you have the right to contest decisions based on automated decision making. This includes decisions on whether or not to shortlist you for employment. We’re aware of application systems that make automated decisions to decline applicants based on their criminal record disclosure although we’re unsure how widespread this practice is.
GDPR does allow employers to make shortlisting decisions on a solely automated basis but insists that they inform you of this and put in place safeguards, including the right for you to request a human intervention in the processing, to express a view and contest the decision.
Carrying out official criminal record checks
Some employers are legally obliged to carry out criminal record checks and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 sets out where standard and enhanced checks can be done for specified roles and professions.
Other employers are able to carry out basic criminal record checks. Some employers will ask you to self-disclose and will base their decision on this information. The GDPR does not prevent employers carrying out basic checks and DPA18 includes a provision to allow checks where it is ‘necessary for the purposes of performing or exercising employment law obligations or rights’. Employers will however now need to demonstrate the necessity of carrying out the checks and identify the lawful basis under which the checks will be carried out.
Asking about criminal records but not verifying the information is unlikely to fulfil the purpose of processing, and could therefore be considered excessive data collection.
The issue with employee consent
Some application forms make it a condition of employment that applicants consent to a check. However, given the imbalance of the relationship between an employer and a job applicant, consent will generally be invalid unless it is freely given. If you’re told by an employer that failure to give consent may have unfavourable consequences for you (for example not getting the job) then this would make it difficult for an employer to rely on consent as their lawful basis.
“Appropriate policy” document
Any employer that is collecting and processing criminal record data as part of their recruitment process must have a policy in place (a privacy policy) which covers the purpose and lawful basis for collecting personal data, the retention period and who information will be shared with. It should also set out an individual’s data protection rights. A copy of the policy should be given to you at the time the information is collected. Employers can be asked to make the document available to the Information Commissioners Office on request.
What other rights do you have under GDPR?
In addition to setting out the data processing principles that organisations need to adhere to, the GDPR also defines the rights that you have to access and control your data. These are referred to as data subject rights and include:
When collecting data from you, organisations must properly inform you of what data they are collecting, what they will be using it for, how long they will keep it and which organisations (if any) they will share it with.
You have the right to contact an organisation and ask them to provide you with details of the data they hold on you. This will include (a) what the data is, (b) why they hold it and (c) what they do with it, including any organisations they share it with.
You have the right to ensure that information about you is correct, and to ensure that information is corrected if it is found to be inaccurate.
Also referred to as the ‘right to be forgotten’. This means you have the right to demand that information an organisation holds about you is deleted, in part or entirely. It’s not an absolute right, and in some circumstances your request could be refused.
You have the right to deny consent for an organisation to process your data even if you have given consent for it to do so in the past. This right is also not absolute and can, in some circumstances be refused. However, an organisation must be able to show you what it is doing with your data so that you can decide to restrict processing if you wish.
This right gives you the opportunity to take the data an organisation holds on you and extract it for use elsewhere.
This allows you to demand that organisations stop using your data in ways you object to.
Finally, with the growth in profiling and the use of data to make automated decisions in say job applications, this provides you with the right to object or appeal against automated decisions that affect you.
What to do when things go wrong
You have the right to expect that your employer or any other organisation will handle your personal information responsibly and in line with good practice. You may be concerned about the way an employer is handling your information if it:
Is not keeping your information secure;
Holds inaccurate information about you;
Has disclosed information about you;
Is keeping information about you for longer than is necessary; or
Has collected information for one reason and is using it for something else.
You may be concerned that an organisation has not been able to identify a lawful basis for processing your criminal record data or that you’ve been affected by an automated decision making process.
In addition, you may want to consider the ways in which employers store, retain and share your criminal record data. For example:
An unspent conviction can become spent during the course of employment and therefore should not be retained by the employer past that point.
Access to your data should be limited only to members of staff that require access (for example the HR manager) and should only be disclosed with your consent.
Your criminal record data should be transmitted and stored securely due to it’s sensitivity and the level of risk posed.
Your criminal record data should be treated separately to other recruitment and employee information (e.g. application forms, payroll etc).
When your information is no longer necessary, it should be securely destroyed.
Raising a concern with an organisation
If you believe that breach of the GDPR/DPA18 has occurred then it’s always best to initially raise your concern in writing with the organisation concerned. We have put together a template letter which can be downloaded here.
Other things to remember when raising a concern with your employer:
The longer it takes you to raise your concern, the harder it will be for your employer to look into it thoroughly.
It’s always worth contacting your employer to find out who to send your concern to. It may not be the office where you’re based.
Typed documents are always easiest to read.
Although you might be aware of the relevant legislation relating to your concern, you don’t have to quote it. Just explain clearly and simply what has happened and, what effect it has had on you.
If you’ve had a long relationship with the employer, make sure you only set out the specific concern you have and nothing that is historic or unrelated.
Although you may be justifiably angry or upset, keep your letter calm and polite as this will help get your points across more clearly.
Ask when you can expect your employer to respond and resist the temptation to contact them again before that.
Include all relevant details to help your employer identify you and your concern.
Send copies of all key documents you have as evidence.
Clearly date all letters, make notes of all related conversations and keep copies of everything.
If the ‘final’ response you receive does not resolve the matter to your satisfaction make sure you follow any appeals process you are provided with.
Raising a concern with the Information Commissioners Office
If your employer is unable or unwilling to resolve your concern, you can raise the matter with the Information Commissioners Office (ICO). Fines for non-compliance with GDPR are much higher than under the previous Data Protection Act 1998. The GDPR introduced “effective, proportionate and dissuasive” administrative fees of up to 4% of annual global or £17.5 million.
Besides the power to impose fines, the ICO has a range of corrective powers and sanctions to enforce GDPR which include:
Issuing warnings and reprimands;
Imposing a temporary or permanent ban on data processing;
Ordering the rectification, restriction or erasure of data.
You will need to raise the matter with the ICO within three months of your last meaningful contact with the organisation.
Taking your case to court
Under Articles 79 and 82 of GDPR, you have the right to take proceedings to court if you believe that your information rights have been breached.
If a court is satisfied that your rights have been breached, it may order that the controller/processor of that data takes steps to comply with its data obligations. You may be able to receive compensation from the data controller/processor if you’ve suffered any material or non-material damage (for example distress).
If you wish to pursue this course of action, we’d suggest that you seek independent legal advice.
Raising a concern with your MP
If you want government to do more to encourage employers to sign up to the Ban the Box campaign and recruit people with convictions then it could be worth contacting your MP if you believe that GDPR/DPA18 has been breached. Your MP may be able to raise the issue with the appropriate Minister or in some cases, make the issue public by raising it in the House of Commons.
Frequently asked questions
Employers have no legal obligation to ask about criminal records at application stage and asking all applicants to disclose at application stage is unlikely to meet the necessity test under GDPR. To meet the test, employers should only be requesting criminal records data from the successful applicant.
You could always agree to a basic DBS check if you’re offered the job. If the employer doesn’t do formal criminal record checks to verify the information you disclose, they could potentially be collecting excessive data which would again breach GDPR.
If it’s an online application form and you get a ‘sorry not suitable’ message after ticking the box, the employer may be in breach of the GDPR’s rules on ‘automated decision making’.
If an employer is asking all applicants to disclose their criminal record on application this is likely to be a breach of GDPR. They should have a privacy policy for you to read that should explain what they ask and why, and how your information is kept. You could raise your concerns with the company’s HR department and if you’re not happy with their response, your next step would be to raise it with the Information Commissioners Office (ICO).
If an employer wants to know whether you have a criminal record, they can’t ask you about cautions or spent convictions unless you’re going to be employed in a role that is listed in the ROA (Exceptions) Order. If you’re being asked to disclose any unspent convictions then the employer should provide you with details of their lawful basis for asking and also a copy of their privacy policy. You should ask them for this if they don’t provide it freely.
If you decide to disclose your criminal record and your application is unsuccessful then you should make sure that you make a request to the organisation to delete your personal data.
The majority of jobs in healthcare are exempt from the ROA (Exceptions) Order 1975 meaning that an employer would be legally obliged to carry out a criminal record check. Before you disclose anything, make sure that the employer is carrying out the correct level of check for the role that you’re applying for.
NHS Employers policy is that, in general, applicants will only be asked about criminal records after they’ve been offered a job.
As the agency will be supplying staff to a workplace where an enhanced DBS check is required, then under GDPR they would probably have a contractual requirement to collect the information.
If an employer needs to ask about unspent convictions then they should provide you with a copy of their privacy policy which explains their lawful basis for asking as well as the process for disclosing and how a recruitment decision will be made.
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.
Information Commissioners Office – The UK’s independent authority set up to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals. Also provide advice on how to protect personal information and how to gain access to official records.
This is a short information page about making a claim for wrongful dismissal. The aim of this page is to provide details of a possible employment claim which doesn’t require a claimant to have been employed for a minimum of two years.
Employees in the UK are protected in a number of ways from being treated unfairly, discriminated against or unlawfully dismissed.
The vast majority of employee rights in the UK come from the Employment Rights Act 1996 and the Equality Act 2010. A criminal record is not classed as a protected characteristic of the Equality Act and can’t therefore be relied upon if your claim is based on discrimination because of an unspent caution or conviction.
Many employment claims will require you to have been employed for at least two years (if you started work after 6 April 2012); 1 year if you started before this. However, there are some claims that can be made which don’t have a two-year service requirement. One of those is wrongful dismissal, which is the focus of this page.
Wrongful dismissal
When can you make a claim?
A claim for wrongful dismissal can arise when an employer breaches the terms of an employee’s contract; for example if an employer fails to honour a notice period or terminates a fixed term contract before the contractual end date.
An employer may be justified in terminating your contract without notice if it is found that you have committed gross misconduct. Determining whether misconduct was severe enough to warrant dismissal without notice can be quite case specific.
However, if for example your contract was terminated for failing to disclose a conviction which an employer was not entitled to know about (for example your employer found out about your spent conviction due to carrying out an ineligible criminal record check or reading information about you online), then you may have a case for wrongful dismissal.
If your contract is terminated as a result of your employer discovering details of an unspent conviction which you didn’t previously disclose, it’s likely they will rely on ‘gross misconduct’ as their reason for sacking you. However, this isn’t always the case and it may still be worth you seeking legal advice.
If you have a notice period of less than one month then wrongful dismissal is generally not worth pursuing.
What can I claim?
The downside of any claim for wrongful dismissal is that damages are limited to the length of your notice period. You wouldn’t be able to claim for loss of earnings beyond your notice period.
Claims can be pursued in either the Employment Tribunal or County Court.
Why should I make a claim?
Despite having a spent conviction which wouldn’t be disclosed on a basic criminal record check, employers may become aware of it in other ways. When this happens, they are often loath to disregard it and will terminate someone’s contract.
Although the amount of money you can claim for wrongful dismissal is limited, any amount is better than nothing and may help while you search for a new job. For many people, money isn’t as important as just having an employer accept that they’ve acted unlawfully.
Getting help
Making a claim for wrongful dismissal can be quite complex. It can be done by an individual, but you may also want to seek advice from an employment law specialist.
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 these organisations listed below can be found here
ACAS – An organisation specialising in preventing and resolving employment disputes
Citizens Advice Bureau – Provide practical up-to-date information on a wide range of topics including employment rights.
The Law Society – The Law Society have a section on their website covering ‘problems at work’ together with links to specialist employment solicitors.
This is a short information page about travelling to India. The aim of this page is to provide further information about the e-Visa system which was introduced in April 2017.
On 1 April 2017 the Indian visa waiver scheme was renamed e-Visa and introduced three subcategories of e-Visa:
e-Tourist Visa
e-Business Visa
e-Medical Visa
This information will concentrate on the e-Tourist Visa.
Eligibility for an e-Visa
International travellers can apply for an e-Visa if their reason for visiting India is for recreation, visiting friends or relatives, short duration medical treatment or casual business visits. Travellers will need:
A passport with at least 6 months validity from the date of arrival in India. The passport should have at least two blank pages for stamping by Immigration Officers.
A return ticket or onward journey ticket, with sufficient money to spend during your stay in India.
Applying for the e-Visa
An application for an e-Visa must be made at least four calendar days prior to arrival in India although it can be made up to 120 days in advance. The only way to apply for an e-Visa is using the online application form; there are no hard copies of the form available.
You’ll need to provide details of a sponsor such as a travel agent or hotel to establish your address whilst in India.
You will have to upload a recent passport sized photograph and a scan of the information page of your passport.
Questions about your criminal record
The online form asks you to tick ‘Yes’ or ‘No’ to the following questions relating to criminal convictions:
Have you ever been arrested / prosecuted / convicted by Court of Law of any country?
Have you ever been engaged in human trafficking / drug trafficking / child abuse / crimes against women / economic offence / financial fraud?
Have you ever been engaged in cyber crime / terrorist activities / sabotage / espionage / genocide / political killing / other acts of violence?
Have you ever by any means or medium expressed views that justify or glorify terrorist violence or that may encourage others to terrorist acts or other serious criminal acts.
If you answer ‘Yes’ to any of the questions you will be asked to provide further details.
More information
To discuss this issue with others – Read and share your experience on our online forum
The Homelessness Reduction Act 2017 came in to force in England on the 3rd April 2018. This placed a new duty on councils to give very specific advice and information if you are homeless or at risk of being homeless and are experiencing domestic abuse or mental health issues, leaving hospital or leaving care, if you’ve recently left prison or youth detention, or if you have been in the armed forces.
The aim of this page is to set out how the new law works in practice. It is part of our information on housing.
Why is this important?
The Homelessness Reduction Act is one of the biggest changes to the rights of homeless people in England for 15 years and effectively adds two new duties to the original statutory housing duty:
Duty to prevent homelessness
Duty to relieve homelessness
Statistics show that nearly 2 out of every 5 people in prison will need help in finding a place to live when leaving prison and 3 in 5 say that having a place to live was important in stopping them from re-offending in the future.
The Homelessness Reduction Act will ensure that local authorities must take “all reasonable steps” to prevent homelessness on the proviso that applicants who are either homeless or threatened with the loss of their home “co-operate” with their local council.
What can you expect?
Every person asking a local council for help with housing will be offered a meeting with a housing officer. The council will decide if you’re eligible for help (for example if you’re a British national or have a permanent right to reside in the UK) and, if you are eligible, the council must offer help if you’re:
At risk of losing your home, referred to a a prevention duty
Already homeless, referred to as a relief duty.
The council have a duty to help you regardless of whether you have a priority need (for example if you have disabilities or dependent children) or if they think you have made yourself intentionally homeless.
If you are homeless, the council may have to provide you with temporary housing. Both the prevention duty and relief duty last for up to 56 days and during this time, the council will work with you to prevent or resolve your homelessness.
Key points of the new law
Some of the key elements of the new law are:
That an individual is classed as ‘threatened with homelessness’ if it is likely that they will become homeless within the next 56 days (this was previously 28 days under the Housing Act 1996).
Local councils have to give everyone who is homeless, or at risk of being homeless, advice and information about homelessness, free of charge.
The council must carry out an assessment in all cases where an eligible applicant is homeless or threatened with homelessness. This is regardless of whether there is any priority need or possible intentional homelessness.
Certain public authorities (see below) will have a duty to refer individuals (with the individuals consent) who are homeless or at risk of becoming homeless to the relevant local authority. These public authorities include:
Prisons
Young offender institutions
Secure training centres
Secure colleges
Youth offending teams
Probation providers (CRC’s and NPS)
Referral from prison/probation and local connection for prison leavers
Every prison, probation provider etc will have the discretion to tailor their referral process to best suit their own situation and resources. For prisons, this is likely to mean putting a system in place to identify that an individual is homeless or at risk of becoming homeless well in advance of their release date. It’s more than likely that assessments will be carried out by a visiting partner agency.
In determining which local authority you will come under, you’ll still need to establish that you have a local connection such as previous residence, employment or family associates within a certain district. Being in prison (whether you’ve been convicted or held on remand) does not establish residency within the area the prison is situated and, as such, does not create a local connection.
Where you meet the criteria for relief duty (you are already homeless) and there is a local connection, the prison will direct you to their local authority. However, where you meet the criteria for relief duty but do not have a local connection to the prison, you will be referred to the local authority where you do have a local connection.
The housing assessment
Once a referral has been made to a local authority, they must carry out an assessment on applicants who are homeless or threatened with homelessness. This is regardless of whether there is any priority need or possible intentional homelessness (for example in the case of people who are being released from prison).
The assessment must include details of:
The circumstances that caused you to become homeless or threatened with homelessness
Your housing needs including, what accommodation would be suitable for you and anybody you reside with or might reasonably be expected to reside; and
What support would be necessary for you and any other relevant person to have, to be able to retain suitable accommodation.
A written copy of the assessment will be given to you and the council will then ‘try’ to agree:
Any steps you are required to take for the purposes of securing and retaining suitable accommodation. For example, you might have to agree to get debt advice if you have rent arrears; and
Any steps the local authority have to take.
When an agreement is reached this will be recorded in writing. If no agreement is reached, the council must set out:
Why they could not agree
Any steps the council consider it would be reasonable to require the applicant to take
The steps the council are to take.
Your case will be kept under continuous review until the local authority determines that they no longer owe a duty. However, you can ask that the decision to end their duty is reviewed.
Your housing plan
It’s important that you follow your housing plan. If you don’t you might not get any further help from the council.
If you can no longer follow your plan or you need the council to change it, you should tell them what you want changed and why. For example your plan may say that you have to widen your property search area but you can’t because you need to live close to family to get help with childcare.
Your housing plan will set out the steps the council will take to either find you somewhere to live or help you keep your home.
If you’re homeless this could include:
Helping you to get emergency housing such as a hostel
Giving you details of landlords who are willing to accept people on benefits
Checking if you can get help with rent costs – for example helping you claim benefits or paying off some of your rent arrears
Giving you help to find a private rented home – for example by giving you a deposit or rent in advance.
If you’re going to be homeless this could include:
Contacting your landlord to see if an agreement can be reached so you can stay in your home
Checking what benefits you’re entitled to so you know how much rent you can afford
Giving you help to get a private rented home – for example giving you a deposit or rent in advance.
Deliberately and unreasonably refusing to cooperate
Your personalised housing plan will place certain obligations on you, as well as on the local authority.
If the local authority believes that you have ‘deliberately and unreasonably refused’ to cooperate with the plan they will provide you with a ‘relevant warning’ notice setting out the reasons for the failure and warning of their intention to serve a notice if the steps highlighted aren’t taken. If, after a ‘reasonable period’ the local authority considers that you have still unreasonably refused to take the specified action, they may serve you with a notice to end the duty they have.
In determining whether someone has deliberately and unreasonably refused to cooperate, decision makers must have regard to your needs and circumstances.
Challenging a homeless application decision
If you disagree with a council’s decision about your homeless application, you can challenge it by asking for a review. You must normally ask for a review within 21 days of getting your decision.
Asking for a review
It’s best to write to your local authority asking them to review their decision. Make sure you keep a copy of your letter for evidence. You’ll need to explain why you think the council’s decision is wrong and provide them with any evidence you have to support your request.
Before you get your review decision
After requesting a review, the council may ask you to meet with a housing officer for more information. Make sure you go to the meeting; it’s your chance to make sure the council fully understands your situation and why you disagree with their decision. It’s worth taking a copy of your evidence with you, so that you can refer back to it. You can take someone with you to take notes or just for support.
Getting your review decision
The council should write to you with their decision within 8 weeks. They should write within 3 weeks if you’re challenging a decision about your housing plan.
If you disagree with the council’s review decision you can also appeal to the county court. You must do this within 21 days of getting the decision.
Complaining about the council
If you remain unhappy with the council’s decision after challenging it, you can complain. Check the council’s website for details on how to make a written complaint.
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.
Crisis – Offer help to anybody who is homeless or been homeless in the previous 2 years
Shelter – Run a national helpline and provide online advice for people facing a housing crisis
Centrepoint – The UK’s leading charity for homeless young people
More information
For practical information – We have more information on housing
To discuss this issue with others – Read and share your experiences on our online forum
We are unable to give immigration advice as under UK immigration law, organisations can only provide this if they are registered with the Office of the Immigration Services Commissioner (OISC). Details of specialist immigration organisations can be found on our important links and organisationspage.
The aim of this page is to set out the process by which someone may be deported from the UK if convicted of a criminal offence, and what actions you can take to appeal a deportation decision.
If you’re threatened with deportation, it’s important to have an understanding of the legality of any deportation order, whether it’s possible to appeal a deportation decision and what you would need to address in any representation to the courts.
Introduction
Deportation is a statutory power given to the Home Secretary. Under section 3(5) of the Immigration Act 1971, a person who is not a British citizen (referred to here as ‘a foreign national’) is liable to be deported from the UK if the Home Secretary deems it to be ‘conducive to the public good’.
If you’re made subject to a deportation order then you’ll be required to leave the UK. The order will authorise your detention until such a time as you are deported. It will also prohibit you from re-entering the country for as long as it is in force and will invalidate any leave to enter or remain in the UK given to you before the order was made.
(1) A ‘foreign criminal’ is defined in the Act as a person:
who is not a British citizen
who is convicted* in the United Kingdom of an offence, and
to whom Condition 1 and 2 below applies
(2) Condition 1 is that the person is sentenced to a period of imprisonment of 12 months or more.
(3) Condition 2 is that:
The offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c.41) (serious criminal), and
The person is sentenced to a period of imprisonment.
*’Convicted’ does not include somebody deemed not guilty of an offence by reason of insanity and who are then made the subject of an order under section 5 of the Criminal Procedure (Insanity) Act 1964.
What is meant by “a period of imprisonment”?
The period of imprisonment referred to in Condition 1 applies to:
The sentence imposed by the court rather than the period of time actually served in prison
Those sentenced to imprisonment or detention for an indeterminate period of time
Those sentenced to at least 12 months detention in an institution other than a prison (for example a hospital or young offenders institution.
It does not apply to:
Anybody who has received a suspended sentence
Consecutive sentences amounting to more than 12 months
Imprisonment due to the default of payment of compensation or a fine.
Section 29(1)(a) (maliciously wounding or causing grievous bodily harm so as to constitute an offence under section 20 of the Offences Against the Person Act 1861 that is racially or religiously aggravated).
Section 29(1)(b) (causing actual bodily harm so as to constitute an offence under section 47 of the Offences Against the Person Act 1861 that is racially or religiously aggravated).
Section 29(1)(c) (committing a common assault that is racially or religiously aggravated).
Section 31(1)(a) (committing an offence under section 4(1) of the Public Order Act 1986 that is racially or religiously aggravated).
Section 31(1)(b) (committing an offence under section 4A(1) of the Public Order Act 1986 that is racially or religiously aggravated).
Section 1(1) (intending to commit an offence and doing an act that is more than merely preparatory to the commission of that offence, provided that the offence in question is described in Schedule 1 to this Order or this Schedule).
Section 1(1) (destroying or damaging, without lawful excuse, another’s property intending to destroy or damage it or being reckless as to that).
Section 1(2) (destroying or damaging, without lawful excuse, property, intending, or being reckless as to whether, that destruction or damage would result and intending that damage or destruction to endanger the life of another or being reckless as to that).
Section 2 (threatening, without lawful excuse, to destroy or damage property, knowing that such a threat is likely to endanger another’s life).
Section 3(a) (having in custody or under control anything intending, without lawful excuse, to use, or permit use of, it to destroy or damage another’s property).
Section 3(b) (having in custody or under control anything, intending without lawful excuse, to use, or permit use of, it to destroy or damage property knowing that such an act is likely to endanger another’s life).
Section 1 (agreeing to pursue a course of conduct which, if carried out as intended, necessarily amounts to the commission of an offence or would do so but for the fact that such commission is impossible, provided that the offence in question is an offence described in Schedule 1 to this Order or this Schedule).
Section 51(1) (placing or dispatching an article, intending to induce a belief that it will explode or ignite and cause personal injury or property damage).
Section 51(2) (communicating information, knowing or believing it to be false intending to induce a belief that a bomb or other thing is liable to explode in a place).
Section 134(1) (intentionally inflicting severe pain or suffering on another, where the offender is a public official or person acting in an official capacity who does such acts in performance, or purported performance, of his official duties).
Section 134(2) (intentionally inflicting severe pain or suffering on another at the instigation, consent or acquiescence of a public official, or person acting in an official capacity who at the time of such investigation, consent or acquiescence is acting in performance, or purported performance, of his official duties).
Section 4(3)(a) (supplying or offering to supply a controlled drug, where the offence in question is in respect of a Class A drug or Class B drug controlled by the Misuse of Drugs Act 1971).
Section 4(3)(b) (being concerned in the supply of a controlled drug, where the offence in question is in respect of a Class A drug or Class B drug controlled by the Misuse of Drugs Act 1971).
Section 4(3)(c) (being concerned in the making of an offer to supply a controlled drug, where the offence in question is in respect of a Class A drug or Class B drug controlled by the Misuse of Drugs Act 1971).
Section 5(3) (possessing a controlled drug intending to supply it to another, where the offence in question is in respect of a Class A drug or Class B drug controlled by the Misuse of Drugs Act 1971).
Section 8(a) (occupying or managing premises where the production or attempted production of a controlled drug is knowingly permitted on those premises).
Section 8(b) (occupying or managing premises where the supply, or attempted supply, of or the offer to supply a controlled drug is knowingly permitted on those premises).
Section 9(a) (smoking or otherwise using opium).
Section 9(b) (frequenting a place used for opium smoking).
Section 9(c)(i) (possessing pipes or utensils for use in connection with opium smoking which have been used, permitted or intended for use, for that purpose).
Section 9(c)(ii) (possessing utensils for use in connection with preparing opium for smoking which have been used, permitted or intended for use for that purpose).
Section 20 (assisting or inducing, while in the United Kingdom, the commission of an offence under corresponding law outside the United Kingdom).
Section 327(1)(e) (removing criminal property from England and Wales, Scotland or Northern Ireland).
Section 328(1) (entering into, or becoming concerned in, an arrangement, knowingly or suspecting that it will facilitate the acquisition, retention, use or control of criminal property).
Section 329(1)(a) (acquiring criminal property).
Section 329(1)(b) (using criminal property).
Section 329(1)(c) (possessing criminal property).
Section 332(1) (failing, as a nominated person, to disclose known or suspected money laundering as soon as reasonably practicable, after the information on which that knowledge or suspicion is based is obtained in consequence of a disclosure under section 337 or 338 of the Proceeds of Crime Act 2002).
Section 333 (disclosing information likely to prejudice any investigation that might be conducted following the disclosure of information by a nominated person under section 337 or 338 of the Proceeds of Crime Act 2002).
Section 1(1) (being in a gang of 12 or more people who use, or threaten, unlawful violence for a common purpose so as to cause a person of reasonable firmness present at the scene to fear for his safety).
Section 2(1) (being in a gang of 3 or more people who use, or threaten, unlawful violence for a common purpose so as to cause a person of reasonable firmness present at the scene to fear for his safety).
Section 3(1) (using, or threatening, unlawful violence so as to cause a person of reasonable firmness present at the scene to fear for his safety).
Section 1(1) (dishonestly appropriating another’s property, intending to permanently deprive him of it).
Section 8(1) (stealing, and before or at the time of doing so, using force or putting another in fear of being there and then subjected to force).
Section 9(1)(a) (entering a building as a trespasser, intending to steal, inflict or attempt to inflict grievous bodily harm or rape).
Section 9(1)(b) (having entered a building as a trespasser, stealing or attempting to steal or inflicting or attempting to inflict grievous bodily harm).
Section 10(1) (committing burglary with a firearm, imitation firearm, weapon of offence or explosive).
Section 12A (aggravated taking of a vehicle).
Section 1(1) (intentionally penetrating the vagina, anus or mouth of another with a penis, where the victim does not consent and the offender does not reasonably believe that there is consent).
Section 2(1) (intentionally sexually penetrating the vagina or anus of another with a part of the body or anything else, where the victim does not consent and the offender does not reasonably believe that there is consent).
Section 3(1) (intentionally sexually touching another, where the victim does not consent and the offender does not reasonably believe that there is consent).
Section 4(1) (intentionally causing another to engage in sexual activity, where the victim does not consent and the offender does not reasonably believe that there is consent).
Section 5(1) (intentionally sexually penetrating the vagina, anus or mouth of another with a penis, where the victim is under 13).
Section 6(1) (intentionally sexually penetrating the vagina or anus of another who is under 13 with a part of the body or anything else).
Section 7(1) (intentionally sexually touching a person who is under 13).
Section 8(1) (intentionally causing or inciting another who is under 13 to engage in sexual activity).
Section 9(1) (intentionally sexually touching another who is 13 or under, or is 16 or under and the offender, who is 18 or over, does not believe that the victim is 16 or over).
Section 10(1) (intentionally causing or inciting another to engage in sexual activity, where the victim is 13 or under, or is 16 or under and the offender, who is 18 or over, does not believe that the victim is 16 or over).
Section 11(1) (intentionally engaging, for the purpose of sexual gratification, in sexual activity in a place where another is present or can observe and the offender, who is 18 or over, knows, believes or intends the victim to be there and the victim is 13 or under, or is under 16 and the offender does not reasonably believe that the victim is 16 or over).
Section 12(1) (intentionally causing, for the purpose of sexual gratification, another to watch or look at an image of a third person engaging in sexual activity, where the victim is 13 or under, or is under 16 and the offender does not reasonably believe that the victim is 16 or over).
Section 13(1) (committing an offence under section 9 to 12 of the Sexual Offences Act 2003 which would be an offence if the offender was 18).
Section 14(1) (intentionally arranging or facilitating something in any part of the world that, if done, would involve the commission of any offence under sections 9 to 13 of the Sexual Offences Act 2003).
Section 25 (intentionally sexually touching a family member, where the offender could reasonably be expected to know that the victim is a family member, and the victim is 13, or is under 18 and the offender does not reasonably believe that the victim is 18 or over).
Section 26 (intentionally inciting a family member to touch or allow himself to be touched sexually where the offender could reasonably be expected to know that the victim is a family member, and the victim is 13 or under, or is under 18 and the offender does not reasonably believe that the victim is 18 or over).
Section 30(1) (intentionally sexually touching another where the victim is unable to refuse by reason of a mental disorder and the offender could reasonably be expected to know that the victim has a mental disorder that is likely to render him unable to refuse).
Section 31(1) (intentionally inciting another to engage in sexual activity where the victim is unable to refuse by reason of a mental disorder and the offender could reasonably be expected to know that the victim has a mental disorder that is likely to render him unable to refuse).
Section 32(1) (intentionally engaging in sexual activity for sexual gratification in a place where a person who is unable to refuse by reason of a mental disorder observes it or the offender knows, believes or intends the victim to observe it and the offender knows or could reasonably be expected to know that the victim has a mental disorder that is likely to render him unable to refuse).
Section 33(1) (intentionally causing, for sexual gratification, another to watch, or look at an image of, a third person engaging in sexual activity, where the victim is unable to refuse by reason of mental disorder and the offender knows or could reasonably be expected to know that the victim has a mental disorder that is likely to render him unable to refuse).
Section 34(1) (intentionally sexually touching another with a mental disorder, where the victim agrees and such agreement is obtained by inducement, threat or deception and the offender knows, or could reasonably be expected to know, about that mental disorder).
Section 35(1) (intentionally causing another with a mental disorder, by inducement, threat or deception, to engage in sexual activity and the victim has a mental disorder which the offender knows, or could reasonably be expected to know, about).
Section 36(1) (intentionally engaging in sexual activity, for the purpose of sexual gratification, in a place where another with a mental disorder is present or observes it, or the offender knows, believes or intends the victim to observe it, because of inducement, threat or deception and the offender knows, or could reasonably be expected to know, that the victim has a mental disorder).
Section 37(1) (intentionally causing another with a mental disorder, by inducement, threat or deception, to watch or look, for the purposes of sexual gratification, at an image of a third person engaging in sexual activity, and the offender knows, or could reasonably be expected to know, that the victim has a mental disorder).
Section 38(1) (intentionally sexually touching another with a mental disorder which the offender knows, or could reasonably be expected to know, about where the offender is involved in the victim’s care).
Section 39(1) (intentionally causing or inciting another with a mental disorder to engage in sexual activity, where the offender knows or could reasonably be expected to know that the victim has a mental disorder and the offender is involved in the victim’s care).
Section 61(1) (intentionally administering a substance to another knowing that the victim does not consent, with the intention of stupefying or overpowering the victim so that sexual activity can be engaged in with the victim).
Section 62(1) (committing an offence intending to commit a sexual offence under Part 1 of the Sexual Offences Act 2003).
Section 63(1) (trespassing on premises, knowing that, or being reckless as to whether, trespass is taking place and intending to commit a sexual offence under Part 1 of the Sexual Offences Act 2003).
Are there any exceptions to automatic deportation?
Where condition 1 and 2 is met, a deportation order will always be made by the Home Secretary unless certain exceptions apply. These include:
Where the removal of an individual would breach their rights under the European Convention on Human Rights or the UK’s obligations under the Refugee Convention.
Where the Home Secretary believes that the individual was under the age of 18 on the date of conviction.
Where the individual is subject to extradition proceedings.
Where a hospital order, guardianship order, hospital direction or transfer direction under the Mental Health Act 1983 has effect.
Where the Home Secretary thinks that removal would contravene the UK’s obligations under the Council of Europe Convention or Action against Trafficking in Human Beings.
Non automatic deportation of foreign nationals
If a foreign national does not meet the automatic deportation threshold, consideration will be given as to whether deportation should be pursued under the Immigration Act 1971 because it would be conducive to the public good.
One of the following criteria would need to be met before a deportation order could be made:
A recommendation for deportation by a court empowered to do so;
The individual has received a custodial sentence of any length for a serious drug offence or gun crime;
The individual has committed a crime and received a custodial sentence of 12 months or more, made up of aggregate or consecutive sentences;
The individual is deemed to be a persistent offender;
The individual has been sentenced to less than 12 months imprisonment but the Secretary of State considers that the offence has caused serious harm either in the UK or in another country.
Decision makers will also take into account:
Cautions – Police cautions can be taken into account when considering whether deportation is conducive to the public good.
Previous convictions – All previous convictions can be considered.
Serious harm offences – The Secretary of State has the discretion to consider whether an offence has caused serious harm. Such an offence may have resulted in a sentence of less than 12 months but may still be grounds on which to pursue deportation.
Deportation of EEA nationals
The deportation of European Economic Area (EEA) nationals is currently restricted by European law.
The ‘Free Movement Directive’ sets out the circumstances in which an EEA national may be expelled but does not specify any particular sentence thresholds that would apply. It requires that deportation must be proportionate and based exclusively on the personal conduct of the individual concerned and the ‘level of threat’ that they pose to public policy or public security. Further information can be found on our EU nationals coming to and staying in the UK page.
An individual cannot be deported solely on the grounds of their previous criminal convictions and further grounds would need to be given in order to justify the deportation of an EEA national who has resided in a Member State for over five or ten years.
This may be subject to change when Britain leaves the EU in 2019.
Deportation under the Early Removal Scheme (ERS)
The Early Removal Scheme (ERS) is a scheme operated by the Ministry of Justice which allows the Secretary of State to remove prisoners who are liable for deportation early (i.e. before they reach their normal release date). This is not a voluntary arrangement and all determinate sentenced foreign national prisoners who have been confirmed as liable for removal, irrespective of sentence length, offence type or country or original, will be considered under this scheme.
The prison governor is responsible for authorising or refusing early removal and generally there are very few reasons why a governor would refuse (for example if an individual had outstanding criminal charges in the UK).
If you’re removed early under the ERS, there is no requirement for you to serve the remaining period of your sentence in custody in the country you’ve been removed to.
How long does a deportation order last for?
When somebody has been deported after being convicted and sentenced to a period of imprisonment of less than four years, the Home Office states that an application for leave to enter the UK will only be considered ten years after the date the order was made.
In the case of an individual who has been convicted and sentenced to a period of imprisonment of at least four years, it is considered that the deportation order will remain in place indefinitely.
The decision to make a deportation order
If it’s decided that deportation is appropriate then a deportation order will be served, setting out why your presence in non-conducive to the public good. The notice will contain details of all the information held by the Home Office on your circumstances at the time the decision was made.
The decision will state that you can, if you wish, make representation within 20 working days as to why you shouldn’t be deported.
Appealing a deportation decision
A deportation order cannot be made if deportation would be contrary to the UK’s obligations under the UN Refugee Convention or the European Convention on Human Rights.
When hearing an appeal against a deportation order following a conviction, tribunals and courts must have regard to the considerations listed in section 117c of the Nationality, Immigration and Asylum Act 2002.
The first issue to be addressed relates to public interest. Namely:
The deportation of a foreign national is in the public interest
The more serious the offence committed by a foreign national, the greater is the public interest in deporting them.
If you have been sentenced to less than four years, then section 117 states that public interest requires deportation unless you can demonstrate that one of two exceptions applies.
Exception 1
You have been lawfully resident in the UK for most of your life
You are socially and culturally integrated in the UK, and
There would be very significant obstacles to your integration into the country to which it is proposed that you are deported.
Exception 2
You have a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting relationship with a qualifying child and the effect of your deportation on the partner or child would be unduly harsh.
If you’ve been sentenced to a period of imprisonment of at least four years, then section 117 states that public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
What would constitute ‘compelling circumstances’?
The Supreme Court has suggested that there are a number of factors which would constitute compelling circumstances. These include:
How integrated into UK society the individual is in terms of family, employment etc;
The quality of the individual’s relationship with any child, partner or other family member in the UK;
The extent to which any relationship with family members might reasonably be sustained after deportation, for example by having family members move overseas;
The impact of deportation on the need to safeguard and promote the welfare of any child in the UK;
The likely strength of the obstacles to an individual’s integration into society in the country of nationality;
Any significant risk of an individual re-offending in the UK.
It is one of the few deportation appeal cases, where a deportee convicted of a serious offence successfully resisted deportation, not merely because he had a British child residing in the UK but because of the impact his deportation would have upon the child. Read Iain Halliday’s article A concrete example of how to meet the “very compelling circumstances” deportation test.
‘Deport first, appeal later’
Following an amendment to the Nationality, Immigration and Asylum Act 2002 in 2014, a new section was included which provided the Home Secretary with the power to remove an individual from the UK pending their deportation appeal. This meant that appeals could only be pursued after deportation.
However in 2017, the Supreme Court found the practice unlawful [R (on the application of Kiarie) v Secretary of State for the Home Department [2017] UKSC], meaning that the Home Office can no longer rely on the ‘deport first, appeal later’ provision. Any appeal against a decision affecting a person’s family and private life can only now be brought from within the UK.
Revoking a deportation order
All the time a deportation order remains in force, you will be unable to return to the UK. You can apply for the order to be revoked but whether or not this will happen depends on the circumstances of the case.
Immigration rules state that an application for the revocation of a deportation order will be considered based on:
The grounds on which the order was made;
Any representations made in support of the revocation;
The interests of the community, including the maintenance of an effective immigration control;
The interests of the applicant, including any compassionate circumstances.
Making representation
If you make no representation then a decision to deport you will be based on the information the Home Office have available.
If you take the opportunity to make representation as to why you should not be deported, these will be fully considered. The burden of proof is on you to show why the impact of deportation would breach the Refugee Convention or your human rights, you will need to provide evidence of this impact. Less weight will be given to any representations which cannot be substantiated.
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
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