Criminal Convictions Vs Settled Status

With Brexit looming, European nationals residing in the UK will have to regularise their status. The EU Settlement Scheme has been set up for the purpose of these residents to switch to “settled status”. Those who fail to do so will be residing illegally. 

The Scheme will be fully operational from the 30 March 2019. Although no further information has been provided regarding the Scheme, for the European nationals who currently do not have a regularised status in the UK, this is an application. Therefore, this has the possibility of being rejected. This possibility of rejection could be based on any previous criminal convictions of the applicants.

Just as with the current applications for Permanent Residency, previous criminal convictions will need to be disclosed during the application process for settled status. In the case that they are not, all applications will be cross-checked with UK and EU criminal record databases.

Criminal convictions will need to be disclosed if they fall under the following categories:

  • The applicant has received a prison sentence within the last 5 years
  • The applicant has ever received a prison sentence for more than a year in relation to a single offence
  •  For applicants who have been residing in the UK for less than 5 years, and have received 3 or more convictions in the 3 years
  • The applicant has been involved in previous cases of deception

In the case an application is rejected, the applicant may be subject to a deportation. A decision of deportation will be subject to a proportionality assessment by the Home Office, which will take into consideration the individual’s circumstances.

Deportation regarding current criminal convictions will be government by EU law. Any criminal convictions acquired after the 29-03-2018 will be governed by UK law. The criteria for deportation can be found in the policy document: EU Settlement Scheme public beta phase: suitability requirements. Any individual that meets the criteria under this policy document, is liable for deportation in accordance with the definition of “suitability” as stipulated in Appendix EU of the Immigration Rules. Nevertheless, even if the individual meets the criteria, the deportation cannot be actioned until Immigration Enforcement issue the final decision based on the proportionality assessment and the individual facts of the case.

Considering all of the above, the temptation would be to fail to disclose the criminal offence; however, this would result in a worsening of consequences. Failing to disclose a criminal offence could result in a refusal based on deception. A refusal based on deception will affect all future applications, reapplications, and appeals; as the Home Office treat deception with the ultimate severity. Often failure to disclose could be accidental, as the applicant may have forgotten or may not even be aware of their record. The action to be taken in these cases will depend on the circumstances. Nonetheless, a refusal on this basis requires a request for further information and explanation. A proportionality assessment will also follow.