Although individuals from certain countries, such as the USA, are allowed to come to the UK and seek entry clearance upon arrival, that approach comes with particular risk when historic criminality is involved. As such, the Home Office advises that if an applicant (i) has previously been refused entry to the UK or (ii) has a criminal record, they may wish to apply for a Standard Visitor visa or a Permitted Paid Engagement Visitor visa (even if they do not need one).
Disclosure
The questions that an applicant has to answer when applying to enter the UK are deliberately wide in their reach, even encompassing a request to disclose fixed penalty notices to the Home Office when applying to enter the UK. These questions are also not restricted by the amount of time that may have passed since a particular incident, with the questions deliberately encompassing offences that have occurred “at any time”.
In short, if an applicant has ever done something that could be used to cast doubt over their character, the Home Office wants to know about it – and a deliberate attempt to deceive the Home Office could result in a ten-year ban on entering the UK at all.
The Rules
Prior to 1 December 2020, the approach of the Home Office to entering the UK was far less rigid than it is currently, as is borne out by the historic guidance provided to its caseworkers. Home Office decision makers used to be afforded a wider discretion when deciding upon applications of this nature, with the language used being that such applications “will normally be refused” as opposed to the current, more stringent position.
Now, as set out at Paragraph 9.4.1 of the Immigration Rules, the test is as follows for those who seek entry clearance to visit the UK for six months:
“Entry clearance or permission must be refused where the applicant:
(a) has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of 12 months or more;
(b) is a persistent offender who shows a particular disregard for the law; or
(c) has committed a criminal offence, or offences, which caused serious harm.”
For those who seek entry clearance to visit the UK for less than six months (the likely category for a musician entering the UK for a concert, or a sportsperson entering the UK for a particular event), Paragraph 9.4.4 of the Immigration Rules states as follows:
“Entry clearance or permission to enter must be refused where the applicant:
(a) has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of less than 12 months, unless more than 12 months have passed since the end of the custodial sentence; or
(b) has been convicted of a criminal offence in the UK or overseas for which they have received a non-custodial sentence, or received an out-of-court disposal that is recorded on their criminal record, unless more than 12 months have passed since the end of the custodial sentence.”
Further, Paragraph 9.3.1 of the Immigration Rules provides the Home Office with yet another far-reaching reason for refusal: it states that an application for entry clearance, permission to enter or permission to stay must be refused where the applicant’s presence in the UK is not conducive to the public good because of their conduct, character, associations or other reasons (including convictions which do not fall within the criminality grounds).
These are what the Home Office describes as mandatory reasons for refusal. The Home Office provides guidance to its caseworkers for determining what constitutes being a persistent offender, a particular disregard for the law, and serious harm – nevertheless, inconsistent decision making is not uncommon. Although the Home Office has attempted to provide its caseworkers with objective criteria for the determination of such issues, when considering the disparity in decision-making rationale, it is evident that there is an element of human subjectivity in making such assessments.
Notwithstanding the fact that an applicant may only seek to enter the United Kingdom for a period of time less than six months, and as such, may well benefit from the slightly less stringent reasons for mandatory refusal at Paragraph 9.4.4 of the Immigration Rules, the ‘conducive to the public good’ threshold is in effect the most common ‘sweep-up’ reason for refusal relied upon by the Home Office.
Home Office Discretion & Leave Outside of the Immigration Rules
The Immigration Rules are designed to provide for the vast majority of those wishing to enter the UK. However, the Home Office also has the power to grant leave to enter on a discretionary basis outside the Immigration Rules, pursuant to its residual discretion under the Immigration Act 1971. Although such applications require particularly strong and compelling evidence in order to demonstrate exceptionality, this is certainly an option that warrants consideration – particularly in light of the difficulty that applicants will face should they fall foul of the Home Office’s mandatory reasons for refusal within the Immigration Rules themselves.
It is no secret that many celebrities, whether sportspeople, musicians or otherwise, have not always had the privilege of leading the life that they live today. Many have come from humble and sometimes troublesome beginnings. More often than not, significant periods of time will have passed since prior offences had taken place, and indeed, most if not all convictions may well be spent. It is through that lens that an applicant could request that the Home Office exercises its residual discretion.
Although such arguments may be met with some resistance, particularly if the Home Office deems refusal to be mandatory in accordance with the Immigration Rules, it is not uncommon for such arguments to be successfully ventilated. That being said, for the Home Office to exercise such discretion, it is advisable for evidence to be collated and submitted at the outset of the application process, going to factors such as rehabilitation, a positive contribution to the economy within the applicant’s country of origin and the prospect of such contribution within the UK, the length of time since historic offending and, perhaps most importantly, evidence of reformed character.
Our Team
The Citizenship and Immigration department at Payne Hicks Beach is well-versed in preparing applications to enter and remain in the UK, even in the most difficult and complex scenarios. We are also experts in the appellate jurisdiction, regularly challenging Home Office decisions with success by way of statutory appeal and/or judicial review, with a close network of barristers who specialise in applications of this nature.
For further information, please contact Matt Ingham, Partner or Sheroy Zaq , in the Citizen and Immigration department or, alternatively, telephone on 020 7465 4300.
