Introduction

This information is about the EU Settlement Scheme for applicants with a criminal record.

The EU Settlement Scheme protects the rights you currently have in the UK through the process of applying for settled or pre-settled status.

As part of the applications process, there are questions about criminal records and checks are carried out by the Home Office.

It is difficult to give clear information on how the Home Office will treat applications from people with criminal records. We do not know how the Home Office is applying its own guidance so this information cannot tell you categorically what to expect, although the Home Office appears to be taking a very long time to make decisions in many applications from people with criminal records.

The vast majority of applicants with a criminal record should find their criminal record is not a barrier to settled or pre-settled status. That said, you may still be refused settled or pre-settled status because of the suitability criteria.

The key points to know are that:

1. Having a criminal record should not put you off applying
2. It’s important to apply as soon as you can. The deadline is 30 June 2021, but you should apply as soon as possible
3. If you have lived in the UK for five years or more and have no unspent convictions, it is unlikely that your criminal record will be a barrier
4. If you have unspent convictions, or you have a criminal record and have lived in the UK for less than five years, you should get specialist advice.

Key parts of this information are:

• Will my criminal record affect my application for settled status?
• How should I answer the question about criminal records?
• Overseas convictions
• What will the outcome of my application be?
• If you are currently in prison
• Getting specialist advice
• Useful resources

This information goes into more detail on these key points and other areas that people with criminal records and those supporting them should be aware of.

This information is not a detailed guide to settled status. There are links to more general details on settled status in the useful resources.

What type of immigration status does the EU Settlement Scheme grant?

The process of successfully receiving status through the EU Settlement Scheme allows EEA citizens and their family members to continue to live, work and study in the UK after 30 June 2021. Successful applicants will continue to be eligible for:

1. Public services, such as healthcare and education
2. Public funds, pensions, access to benefits
3. British Citizenship if conditions are met

The requirements of settled status are mainly based on UK residence. The Home Office will check how long you have been in the UK and not what you have been doing here. Settled status is not dependent on your employment, whether or not you receive benefits or hold private health insurance.

This means that EU citizens and their family members who have been continually resident in the UK for at least five years should get settled status. The five year residence in the UK does not need to have been in the most recent five years. People who have previously lived in the UK for five years can apply for settled status even if they do not live in the UK anymore, as long as they have not been absent from the UK for more than five consecutive years or have not been deported or excluded.

Those who have lived in the UK for less than five years will have to apply for temporary pre-settled status, which is valid for five years from the date of the decision letter. This will allow them to stay in the UK and apply for settled status once they have achieved five years’ continuous residence in the UK.

Those applying for settled or pre-settled status must also prove their nationality, identity, eligibility and subject themselves to a criminality check (see below).

Do I need to apply to stay in the UK?

If you want to continue to live in the UK, you will need to apply for settled or pre-settled status. You must show that you are from either:

1. a country in the EU, European Economic Area (EEA) or Switzerland
2. another country and you have a family member who is from the EU, EEA or Switzerland

unless you have indefinite leave to remain in/enter the UK or are a British citizen (you hold dual nationality).

The EEA includes EU countries and Norway, Iceland and Liechtenstein.

If your application is successful, you will be granted either settled or pre-settled status. With either status, you will be able to continue living and working in the UK after 30 June 2021.

Many people with a criminal record feel nervous about applying and are worried they will be refused.

Will my criminal record affect my application for settled status?

The vast majority of applicants with a criminal record should find that their criminal record is not a barrier to settled or pre-settled status.

If you have not applied for settled or pre-settled status by 30 June 2021, you will not be able to continue living and working in the UK and so you must make an application if you want to continue living in the UK.

If you do not apply before 30 June 2021 then you will become unlawfully resident in the UK which will affect your right to continue living and working here.

Although the Home Office will accept late applications where there is a good reason for missing the deadline, it is important to try to not be in this difficult position and so you should apply as early as possible.

In some situations, where you have unspent convictions or serious offences, it may be necessary to write detailed legal representations in support of your application so that it is not refused or a deportation order is not issued (see more on this below). It is strongly recommended that in these circumstances, you get specialist advice before making your application.

When should I apply?

Your application must be made by 30 June 2021.

Although the deadline is 30 June 2021, you should apply to stay in the UK as soon as possible. After 31 December 2020 you might be asked to prove your right to do things like get a job or use the NHS.

Until 30 June 2021 you can still prove your rights in the UK with your passport or national identity card (if you are an EU, EEA or Swiss citizen), or with your biometric residence document. However, you’ll also be able show you have pre-settled status or settled status as another way of showing your rights.

What questions are asked about criminal records?

If you are over 18, you will be asked the following question as part of your application for settled status:

Have you ever been:
– Convicted of a criminal offence
– Arrested or charged with an offence that you’re on trial for or awaiting trial

This includes offences in the UK or any other country

Children (those under the age of 18) will not be asked this question. However, the Home Office says that all applicants over the age of 10 will be checked against relevant criminal records databases, including the Police National Computer (PNC). This means that in some cases it might be necessary to declare offences even if you are under 18 years old. If you are not sure about this, it is strongly recommended that you get specialist advice before making your application.

How should I answer the question about criminal records?

Home Office guidance states:

“You do not need to declare any of the following:
– convictions that do not need to be disclosed (“spent convictions”)
– warnings (“cautions”)
– alternatives to prosecution, for example speeding fines”

Have you got a spent conviction?

Under the Rehabilitation of Offenders Act 1974, convictions become “spent” in England & Wales after a period of time which is determined by the sentence received.

If you received your conviction in this country and are confident that it is now spent, you do not need to declare it. So long as you have not been arrested and awaiting an outcome of a police investigation, or on trial or awaiting trial, or you can answer “No” to the question.

Although you don’t need to declare spent convictions, for more serious and recent convictions, even if they are now spent, you may want to get specialist advice in support of your application and ask for your application not to be referred for a deportation decision (see more on this below).

Have you got an unspent conviction?

If you received your conviction in this country and it is not yet spent under the Rehabilitation of Offenders Act 1974, you need to answer “Yes” to the first question about your criminal record. You should get specialist advice to support you with your application.

Not sure if your conviction is spent?

You can find out more details about working out if your convictions are spent in England & Wales on this page about spent periods. You can also use our online tool, available at www.disclosurecalculator.org.uk.

If you are not sure if you need to declare a conviction, or if you cannot remember the details, you could:

1. Apply for your own basic DBS check. This costs £18 and will show any unspent convictions.
2. Apply for a copy of your police record by making a subject access request. This will show all convictions recorded on the Police National Computer. It won’t separate out unspent and spent convictions and it could also include convictions from overseas as well.

If you are not sure if a conviction is spent, you may decide to declare it. There appears to be no obvious downsides to declaring a spent conviction that didn’t need to be declared.

Overseas conviction?

If your conviction was overseas, the Home Office question suggests that if in that country it would no longer show on your criminal record, you do not have to declare it.

It can be difficult to properly understand the laws on when criminal records no longer show up in the country it was received in, as these laws are different to the way convictions become spent under Rehabilitation of Offenders Act 1974 in England & Wales. There is a comprehensive resource which has country-specific information on overseas criminal record checks and which convictions appear on the certificate issued in that country.

Unless you are confident that your conviction is the equivalent of being spent in the country you received it in, you should declare it.

Not sure?

You might be worried about providing false or misleading information. This should only be a problem if it can be shown that information which wasn’t declared was “material to the decision” – this is likely to mean not declaring serious criminal convictions. However, if you are not sure if your conviction is spent or not, you may choose to err on the side of caution and declare it, given that there appears to be no obvious downsides to declaring a conviction that didn’t need to be declared.

What are the questions if I answer “Yes” to having a criminal record

If you answer “Yes” to the first question, there are then further “Yes/No” questions which, if you need to answer “Yes” to, you will be asked to provide more details. These are:

1. Have you been convicted of a criminal offence in the UK in the last 12 months?
2. Have you had a criminal conviction outside the UK that involved any of the following:
   1. a violent offence
   2. a drug-related offence
   3. a prison sentence of 12 months or longer
3. Have you ever been arrested or charged for an offence for which you are currently on, or awaiting, trial or which is pending a decision to charge?

What checks are done?

Guidance from the Home Office suggests that all applications from those aged 10 or over are checked against databases including the PNC, and this could include revealing spent offences.

Will I be eligible for settled or pre-settled status with my criminal record?

The Home Office say that if you have only been convicted of a minor crime you will still be eligible for settled or pre-settled status.

The Home Office has not published details on how they define “a minor crime” and so it is difficult to give any definitive information. However, we know a number of cases where people who had lived in the UK for more than five years, then been convicted in the last five years, received prison sentences of less than a couple of years and have since been granted settled status.

However, as covered below, if a crime leads to a prison sentence that is served over 30 June 2021, and if you have less than five years continuous residence, you cannot meet the eligibility to be granted pre-settled status as you will not have begun a continuous qualifying period before the specified date.

Will my application be referred to Immigration Enforcement?

Your application will be received by a casework team. From information provided on the application form and the information obtained from the PNC, if your criminal record requires assessment, your application will be paused and moved to a different team for a case-by-case consideration.

According to Home Office guidance, applications will be moved in this way if:

• In the last five years you have received a conviction which resulted in a prison sentence
• You have ever received a conviction which resulted in a prison sentence of 12 months or more as a result of a single offence.
• In the last three years, you have received three or more convictions (including non-custodial sentences) unless you have lived in the UK for five years or more. This category would include persistent offending. ‘Persistent’ offending is where a person has a number of convictions for minor offences or non-custodial sentences, suspended sentences, restraining orders, Anti-social Behaviour Orders or police cautions. Whether an applicant will be classed as a persistent offender really depends on the facts of the individual case, taking into account the nature and frequency of the offences. The passage of time since the individual’s last offence will be a factor for consideration but will not, in itself, be determinative.
• You are currently in prison and your case is awaiting deportation consideration.

If you have a criminal record that is not covered by the above, it is unlikely that your application will be referred as a result of your criminal record.

Your application won’t be referred if:

1. A recorded decision has previously been made not to pursue deportation
2. A previous decision to deport was overturned on appeal
3. You received a prison sentence and at the time you were in prison, your conviction did not meet the criteria for referral (see below)

All three situations above are based on you having not committed any further offences that meet the above criteria.

You might not be told that your application has been referred, but if it has then it is likely to take much longer than other applications.

What happens if my application is referred?

If you make an application for settled status and your criminal record means that you might meet the criteria for deportation, no decision will be reached on your application until your case has been referred to Immigration Enforcement and a decision made on whether to pursue deportation on the facts of the case.

This means:

• Your settled status application will be put on hold, potentially for a long time, while you are considered for deportation
• It is not clear that you will be informed that this is happening
• The Home Office might be in touch by telephone or writing to ask for further information, and you may be required to attend an interview
• It is only if you are served with a deportation decision that your application for settled status will be refused due to a criminal record. If a deportation decision is made and the settled status application is refused, it is not clear whether the Home Office will attempt to detain you

Will a previous prison sentence lead to a referral?

As long as you have not committed a further offence that meets the referral criteria, your application won’t be referred if you have received a prison sentence and, at the time you were in prison, your conviction did not meet the criteria for referral to the Home Office for deportation.

The Home Office publishes criteria in the ‘Referral to Immigration Enforcement’ section of the suitability guidance. The key points are:

• Prison sentences of up to two years in length received before 1 April 2009 do not lead to a referral
• Prison sentences from before 6 October 2015, where the prison sentence is still being served, will be referred
• If your prison sentence was before 6 October 2015 and you have been released, you have not been deported and so can apply
• If your prison sentence was after 6 October 2015, this leads to consideration for deportation. If you are (or have been) released then you have already been referred/considered and not deported. If you are still serving a sentence then you will be referred (even if for a very short sentence)

Overseas convictions

The section above on answering the questions asked covers whether you need to declare overseas convictions.

The Home Office will look to get details of overseas convictions where these are declared by you, or where the check of the PNC indicates that information exists. This may involve them contacting you for more information or carrying out an overseas criminal record check (this will only be required where the Home Office deem it essential).

An overseas check will not normally be done where you have five years’ continuous residence in the UK and there is no evidence of offending from the PNC.

What will the outcome of my application be?

Criminal records received before 31 December 2020

Criminal records that relate to offences committed before 31 December 2020 are considered on different criteria to criminal records for offences after this date.

Chapter VI of Directive 2004/38/EC sets out the EU public policy tests for deportation (the underlined text is the overarching test):

“Previous criminal convictions shall not in themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent a genuine, present and sufficient serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.”

For offences up to 31 December 2020, the threshold for deportation is a high one, especially for:

1. Those who have acquired permanent residence (‘serious grounds of public policy and public security’)
2. Those continuously resident for ten years or more (‘imperative grounds of public security’)
3. Children (‘imperative grounds of public security’).

The assessment is based on current EU law. The question will be whether you pose a genuine, present and sufficiently serious threat. This will be assessed proportionally taking into account all facts of your situation. Your application might be refused if:

• You have, in the last five years, received a conviction which resulted in a prison sentence.
• You have, at any time, received a conviction which resulted in a prison sentence of 12 months or more as a result of a single offence (this this does not include consecutive sentences).
• You have, in the last 3 years, received three or more convictions (including non-custodial sentences) unless you have lived in the UK for five years or more.

Immigration Enforcement also take into account factors such as age, health, family relationships, social and cultural integration etc.

You should only be refused settled or pre-settled status on the basis of ‘serious grounds of public policy or public security’, which is the term that is used to set out what types of cases that can lead to a refusal (this is known as the EU public policy/public security/public health test, as set out in the EEA Regulations 2016)

Criminal records received after 31 December 2020

The Government is keen to impose UK-law thresholds in relation to offences from 1 January 2021 and Appendix EU will apply a lower ‘conducive to the public good’ test to offences that occur after that date.

If you are an EU citizen eligible to apply for (or have) settled status, the tougher UK criminality thresholds will apply to offences committed after 31 December 2020.

1. There is a presumption of automatic deportation for any offence resulting in prison sentence of 12 months or more, subject to human rights considerations
2. For prison sentences of less than 12 months and other convictions, there is no automatic deportation but you will be deported if it is deemed “conducive to the public good”.

Convictions obtained from 1 January 2021 will be covered in more detail in an updated version of our information on deportation. The Immigration Bill continues its passage through Parliament and will provide the legal basis for ending freedom of movement on 31 December 2020. The government has said it will confirm the final details for the points-based system in late 2020 and that “a robust and consistent approach to applying the UK criminality thresholds for the refusal of entry, permission to remain in the UK, deportation and exclusion, to EU and non-EU citizens, will be taken.”

Continuous residence and prison sentences

To be granted settled status, you will usually need to have been living in the UK continuously for five years, known as ‘continuous residence’.

If you have been to prison, you will usually need at least five years’ continuous residence from the day you were released to be considered for settled status, unless you had previously had five years’ continuous residence before the prison sentence.

There are three key parts to this.

If you have lived in the UK for five years, you can rely on this to apply for settled status, unless since you completed the five years a ‘supervening event’ has occurred, which includes a deportation or removal decision.

If you have lived in the UK for five years and then served a prison sentence but have not been subject to a deportation decision, you can apply for settled status with five years’ continuous residence. Evidencing your five years’ residence is crucial in establishing a right to settled status.

If you have lived in the UK for under five years and would be in line for pre-settled status, a prison sentence of any length has the effect of resetting the clock on your continuity of residence in the UK. The period of imprisonment does not count towards residence and you start to accrue residence again from scratch upon release. This means that you might have lived in the UK for four and a half years and be sentenced to six months in prison and upon release before 31 December 2020 the four and a half years would count for nothing and your period of residence would have to restart from scratch.

• Example 1 – Mr A has lived in the UK for 8 years. He was sentenced to 6 weeks in prison last year. Mr A has 5 years’ continuous residence to apply for settled status because he had lived in the UK for more than 5 years before his prison sentence.
• Example 2 – Mr B has lived in the UK for 4 years. He was sentenced to 8 weeks in prison 2 years ago. Mr B has only 2 years’ continuous residence because his continuity of residence was broken by his prison sentence and only the time since his release counts towards his continuous residence. Mr B is not eligible for settled status so would be eligible for pre-settled status.

What if I’m refused?

If the decision is to deport or exclude you due to your criminal record, then your settled status application will be refused. This will mean you will have an accompanying deportation or removal order which is the decision that will need to be appealed. If the deportation order is successfully appealed, you will then be able to resubmit your settled status application.

For applications made on or after 31 January 2020, you have a right of appeal against a refusal on eligibility or suitability grounds. You have 14 days, if you are inside the UK, to appeal the decision to an independent immigration judge. If you are outside the UK, you have 28 days to appeal the decision.

For applications made before 31 January 2020 there is no right of appeal.

If the Home Office decides to issue deportation proceedings against you, or if your settled or pre-settled status is revoked as a result of a deportation decision, you will have a chance to challenge these decisions by submitting representations and lodging an appeal to the First-Tier Tribunal. This appeal must be lodged under the EEA Regulations 2016 if the deportation decision is based on criminal conduct that took place before 31/12/2020 or under the UK domestic immigration rules if the criminal conduct took place after 31/12/2020,

If your application was refused on eligibility grounds, you can make an application for an administrative review, if you think that the caseworker incorrectly applied the law in your case. Unlike an appeal, administrative review is not a reconsideration of your case. You have 28 days to make an application for an administrative review (seven days for those in detention). There is no discretion to allow late applications.

If you are currently in prison

How to apply

If you are currently in prison, you will probably need to use a paper application form given the difficulties in accessing your own identity documents and using a smart phone (which rules out using the app). Contact the Settlement Resolution Centre (0300 123 7379) to request that a paper application is sent to you. If you have problems contacting the Settlement Resolution Centre, somebody else can request a paper application on your behalf. They will be asked why you can’t apply online, which country you are from, whether you are an EEA citizen or the family member of a qualifying citizen, and whether you have ID. Unlock’s helpline can contact the Settlement Resolution Centre on your behalf to request a paper application form.

Ask the prison to provide your identity document to the Home Office when your application is sent (we understand that prison governors will make ID documents accessible).

It is possible for a third party to complete the online application on your behalf.

If you have lived in the UK for five years before you went to prison and are released from prison after 30 June 2021 and didn’t apply while in prison, you might be able to make a late application.  You would have to show that a short prison sentence over the cut-off date was a good reason for a late application. It is, however, advisable to make the application before 30 June 2021 to avoid having to argue that discretion should be exercised in accepting your application after the cut-off date.

If you have lived in the UK for less than five years, and are sent to prison before 31 December 2020 and are due to be released from 1 January 2021, if you apply for settled status you will be refused on eligibility grounds because your continuous qualifying residence cannot begin until after 31 December 2020.

Making representations

If the Home Office seek to issue a deportation decision against you, you will have the opportunity to make representations to the Home Office against making a deportation order.

These representations should cover details of your life in the UK before the prison sentence, and be focused on two parts:

1. Showing that you have been working, in self-employment, running a business, studying etc
2. Confirming and providing evidence of factors that Immigration Enforcement take into account (such as age, health, family relationships, social and cultural integration).

You should get specialist advice in making representations.

Arrested, charged or awaiting trial?

This is something you are asked about when you first apply.

If this applies to you, or if you are later arrested and/or charged, your application will likely be frozen while legal proceedings are still ongoing, and you will be asked to notify the Resolution Centre of the outcome. This can mean that your application will take a significant amount of time before a decision is reached.

If you are a child when you apply

Your application must be considered in line with children’s rights standards but these are not clearly explained by Home Office guidance.

Under the Immigration (European Economic Area Regulations) 2016, a child under the age of 18 cannot be deported except on ‘imperative grounds of public security’. The ‘imperative grounds of public security’ wording is also found in Article 20 of the Withdrawal Agreement and both mirror Chapter VI of Directive 2004/38 (Articles 27-33). This is an extremely high threshold.

If you apply after you turn 18 you are treated as an adult. However, if you apply before you turn 18 and subsequently turn 18, your application will be considered based on the age you were on the date of application. In general, deportation action is more likely to take place once a young person has turned 18. It is unclear whether or not the Home Office takes into account your age at the point at which an offence occurred.

Applications from your children

If your child (while under the age of 18) has lived in the UK for five years as a family member before you as an EEA parent serves a prison sentence, your child can apply for settled status without the prison sentence having an impact. However, for pre-settled status, the Home Office considers that your child’s continuous residence would be broken along with yours by the prison sentence.

Your child may have rights from their other parent, in which case your prison sentence should not affect your child’s rights.

Getting specialist immigration advice

Organisations providing immigration advice related to the EU Settlement Scheme are registered with the Office of the Immigration Services Commissioner. There are different levels of advisor. Level 1 advisors can provide initial advice and so can help with applications where convictions do not need to be declared. However, where convictions need to be declared, these applications will be referred to a higher-level provider. Level 2 advisors can provide casework, and level 3 advisors can provide advocacy and representation.

If you have unspent convictions, or you have a criminal record and have lived in the UK for less than five years, you should get specialist advice. You should get advice from an organisation that can provide advice about convictions that need to be declared (these would be level 2 and level 3 advisors)

Organisations that are known to be able to offer advice and casework support (for people making settled status applications with criminal convictions that need to be declared) include:

• AIRE (Advice on Individual Rights in Europe) Centre – The AIRE Centre offer telephone and online support to victims of abuse and trafficking, homeless people, children in care, Roma people, individuals in atypical and vulnerable living situations and complex cases
• Coram Children’s Legal Centre – Coram Children’s Legal Centre offers support to children and young people on the EU settlement scheme and criminal convictions. This support is normally limited to email advice, but legal representation may be provided in a small number of cases where legal aid is available (e.g. separated children)
• Here for Good Law – Here for Good provides free immigration advice to EEA nationals and their family members living in the UK, through an email and telephone advice line.
• Rights of Women – Rights of Women have an EU settlement scheme advice line for women who are themselves an EU citizen (including EEA and Swiss) or are the family member of an EU citizen and need advice on their immigration status. This line is only for women who have experienced Violence Against Women and Girls (including domestic abuse, sexual violence, trafficking, modern slavery, so-called honour-based violence and FGM).

A number of organisations are being funded to provide support to vulnerable and at risk EU citizens applying to the EU Settlement Scheme.

The website eurights.uk provides information for EU citizens and their family members concerned about their EU rights, their rights after Brexit and what they need to do to stay in the UK.

You can also use the Office of the Immigration Services Commissioner (OISC) Adviser Finder to find a registered adviser near you.

Useful resources

General information on settled status

1. Gov.uk information on the EU Settlement Scheme
2. Citizens Advice information on staying in the UK if you’re from the EU
3. Publications Office of the European Union – Brexit – What you need to know as an EU citizen living in the UK (available in multiple languages)

Technical resources

1. The limited basis under which settled or pre-settled status can be restricted on ‘conduct’ grounds (including criminality) are set out in Article 20 of the Withdrawal Agreement
2. The EU Settlement Scheme: suitability requirements sets out the relevance of a criminal record
3. Chapter VI of Directive 2004/38/EC sets out the EU public policy tests for deportation
4. Current EU public policy/public security/public health test, as set out in the Immigration (European Economic Area) Regulations 2016 (EEA Regulations)

About this information

This information provides general details about the EU Settlement Scheme and applying for settled status. This information does not relate to individual cases. The provision of immigration advice and services is a regulated activity and can only be performed by qualified persons i.e. those regulated by the Office of the Immigration Services Commissioner or solicitors and barristers in England and Wales regulated by the Solicitor’s Regulatory Authority (SRA) and the Bar Standards Board (BSB) respectively.

Unlock’s staff are not registered immigration advisors so we are unable to provide immigration advice. This means we are unable to provide an opinion on a course of action or a range of options a person might take based on the information the individual has provided. However, as a charity we are keen to understand the specific issues that people with criminal records are facing in relation to applying for settled status, and to make sure that the information we provide is as clear and helpful as possible, so we encourage those supporting applicants to get in touch on that basis. You can email feedback@unlock.org.uk.

About Unlock

Unlock is a national independent advocacy charity for people facing obstacles, stigma and discrimination because of their criminal record.

We have been working to help secure the rights of EU nationals to settled status in the UK by ensuring that a criminal record does not unfairly exclude them. More information about this work can be found here.

More information

1. For practical information – We have more information on EU nationals coming to and staying in the UK as part of our information section on coming to (and staying in) the UK.
2. To discuss this issue with others – Read and share your experiences on the “Staying the UK” section on our online forum
3. Our policy work – Read about the policy work we’re doing on settled status.
4. Questions – If you have any questions about this, you can contact our helpline.

Get involved

Help us to add value to this information.  You can:

1. Comment on this page (below)
2. Send your feedback directly to us
3. Discuss your views and experiences with others in the “Staying the UK” section on our online forum
4. Share your personal story by contributing to our online magazine, theRecord
5. Help our policy work – we want to hear from people who have had challenges in getting settled status because of their criminal record. Find out more here. 

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:

1. A recommendation for deportation by a court empowered to do so;
2. The individual has received a custodial sentence of any length for a serious drug offence or gun crime;
3. The individual has committed a crime and received a custodial sentence of 12 months or more, made up of aggregate or consecutive sentences;
4. The individual is deemed to be a persistent offender;
5. 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.

Exception 1

1. You have been lawfully resident in the UK for most of your life
2. You are socially and culturally integrated in the UK, and
3. 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.

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.

‘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
• freemovement – What does “unduly harsh” mean in deportation cases?

More information

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

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