Tag: Coming to the UK

EU nationals staying in the UK and deportation from the UK due to a criminal record

As the deadline approaches for the UK to leave the EU, the government has introduced a compulsory scheme for all EU citizens living in the UK who wish to remain in the UK – referred to as the EU Settlement Scheme. It is expected that 3 million people will apply for ‘settled status’.

If your case is straightforward, your application could be dealt with in a matter of days. However, for those with a criminal record, the process may be more of a struggle.

We’ve just published two new information pages:

These pages set out:

Details about the free movement of EU nationals to the UK.
Some of the reasons why EU nationals may be refused entry to the UK.
The changes which will take place in the lead up to (and after) the UK leaves the EU, with a particular focus on those EU nationals currently living in the UK.
The process by which someone might be deported from the UK if they are convicted of a criminal offence, irrespective of your country of origin.

Given that further changes are likely after the UK leaves the EU, we will keep these pages updated.

The Home Secretary has promised that there will be no repeat of the Windrush scandal which has seen people who have lived in the UK for decades threatened with deportation because they did not have the right paperwork. However, if just 5% of the estimated 3 million EU citizens living in the UK don’t register by the deadline, there will be approximately 200,000 people without any status.

We have some concerns about the approach the government are taking in administering the new EU settlement scheme, in terms of if or how a past criminal record might have an impact. We’re keen to hear from anyone who has been, or is going through the process. Please email your details and the circumstances surrounding your situation to policy@unlock.org.uk.

We would also like to hear from you if you arrived in the UK between 1948 and 1971 and would not qualify for citizenship due to your having a criminal record. Please email your details and the circumstances surrounding your situation to policy@unlock.org.uk.

We’ve voted to leave the EU – what are the consequences for people with a criminal record

The votes have been counted and we now know that we’ll be leaving the EU. The consequences could be huge, and the coming years may initially be economically and socially disruptive. But, how will it affect you if you have a criminal record?

This is a question that’s come up quite a bit over the last month or so. It’s still very unclear, but we’ve tried to answer some of the questions that we’ve had.

Travel

There has been talk that in the event of the UK leaving the single market, we’ll need a visa to travel to other EU countries.

The UK is second only to Germany in terms of tourists visiting other countries in the EU. We think it’s unlikely that the governments of Spain and Greece would single us out for tougher treatment at borders and we doubt there will be a need for visas to travel to the EU on holiday. If this were the case, there’d be no need to worry about disclosing your criminal record to get a visa like you do if you want to travel to the US.

If Brexit were to lead to a more radical split of the EU, then the Schengen arrangements (which controls border crossing between most of the member states) would presumably end and border checks may be re-introduced. We don’t feel this will happen any time soon.

Studying

Undergraduates in England pay the highest tuition fees in the world, leading to some students looking to go to cheaper European universities. The National Union of Students have said that the effect of Brexit may lead to student visas being required and international fees being charged for courses. The introduction of student visas may mean there would be a requirement to disclose a criminal record, irrespective of the course that you’ll be studying.

Work

The ability to work in the EU without a work permit is down to our EU membership. One of the key arguments of the leave campaign was that we operate a quota system for migrant workers. If this is imposed, British citizens may face similar restrictions. As in the case of student visas, applying for a work permit (and perhaps a Police Certificate) may require you to disclose your criminal record in a way you don’t need to at the moment.

Exchange of criminal record data

Through the European Criminal Records Information System (ECRIS), an electronic exchange mechanism is in place for the sharing of information between EU members. ECRIS is not extended to any non-EU countries, however countries that are fully part of Schengen (i.e. Norway and Switzerland) do exchange information.

Broadly speaking, the EU court has rules that personal data can only be transferred to non-EU countries that have data protection laws ‘essentially equivalent’ to EU law. The UK would therefore have to commit to continuing to apply a law similar to EU law or risk disruptions in the flow of personal data. It’s likely that our data protection law will be ‘essentially equivalent’ to EU law.

European Convention on Human Rights

Currently the UK is a signatory to the European Convention on Human Rights (ECHR), a code of conduct enforced by the European Court of Human Rights in Strasbourg. It exists separately from membership of the EU but it does have a fundamental impact on EU law decisions.

It’s worth noting that withdrawal from the EU will not automatically affect the UK’s status as a signatory to the ECHR.

Are our rehabilitation laws at risk?

The Rehabilitation of Offenders Act 1974 is a piece of legislation that the UK Government reformed in 2014. It should not be impacted by the UK leaving the EU.

The filtering mechanism brought into force in 2013 was off the back of a successful legal challenge which used ECHR arguments. However, the way it was introduced was through amendments to UK legislation, the Police Act 1997. Again, it should not be impacted by the UK leaving the EU.

For more information

To discuss this issue with others – Read and share your experiences on Brexit on our online forum
Questions – If you have any questions about this, you can contact our helpline.

Immigration and nationality decisions are now exempt from the ROA

As of the 1st October 2012, changes made through the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (s.140 in particular) mean that immigration or nationality decision making, including initial decisions and any subsequent proceedings, are exempt from the Rehabilitation of Offenders Act 1974. This means that spent convictions can also be considered as part of these processes. This includes convictions obtained before October 2012.

It does not, however, affect any proceedings which began before October 2012 (or decisions made but not finally determined).

Please note: At the time of writing, the UKBA’s website has yet to be amended to reflect the above changes, and hence references to the ROA still remain in our own information above. This will be amended in due course, in line with changes to the UKBA website. It is possible, for example, that the UKBA will set their own guidelines for disregarding certain convictions. Check out our Coming to the UK section for the last information.

All these changes mean is that the UKBA now has the freedom to take into account spent convictions. The UKBA are yet to publish their own guidelines on how they intend to put this possibility into operation.

A useful article on this change is available from the Immigration Lawyers Gherson.