Arrest and immigration status

INTRODUCTION

  • Over recent years with the UK government’s express policy of constructing a hostile environment for migrants perceived as undesirable, there has been increased use in Home Office policy of reliance on criminality and good character requirements as a tool to exclude people. What follows will seek to make clear how wide ranging these provisions are, and the large degree of discretion that is available to the Home Office and associated organisations
  • If you have specific concerns about your current status, or in respect of any planned future applications to the Home Office, seek specific expert legal advice
  • If you have concerns about current status or in respect of any planned future applications to the Home Office, you need to seriously consider if getting arrested is the contribution that you should be being making to XR. Be extremely cautious about taking this step unless you are really not concerned about consequences that may follow
  • The current and possible potential implications of being arrested are extremely hard to reliably advise upon. A number of factors make certainly impossible:

    • Police / CPS charging tactics

    • Magistrate’s / Judge’s sentencing policy

    • Generally, the politicised / reactive and increasingly harsh nature of the government’s approach to migration and migrants

    • Fast and frequent changes in Home Office Policy and those with responsibility for it

    • National security / terror provisions - a separate regime applies - is this out of the question in the XR context?

Immigration status and arrest / criminality:

When taking the decision as to whether getting arrested is for you, you need to be thinking about:

  • Your current immigration status and the possible implications of arrest for that

  • Any future planned applications to the Home Office for further leave / settlement

  • Medium and long term, do you see your future in the UK and what would be the impact of your ability to provide the basics of life of having problems with the Home Office (eg. loss of permission to work / access to welfare etc)

Immigration status: Current – what are the possibilities?

  •  British passport holders

  • Settled; those or are treated as settled – so no time limit on their presence in the UK = Indefinite Leave to Remain (ILR), Permanent Residence (EU and third country dependants (PR)), Settled Status (post-Bexit EU), Refugee Settlement

  •  EU nationals; pre and post Brexit regimes (registration /Settled Status)

  • Limited leave to remain (Non-EU); (commonwealth / non-commonwealth) students (Tier 4), PBS (work related categories), Discretionary Leave (DL)

  • Refugee Status / Humanitarian Protection (HP); (recognised following decisions on applications/appeals)

  • Asylum seekers;  those with applications for protection pending

  • Applications pending; – no current status (so not extension applications) Discretionary Leave (DL) applications pending (family & private)

  • Without status; overstayers, those not known to the Home Office (HO)  

Planned future applications to the Home Office / other countries:

  1. Entry clearance applications

  2. Further leave to remain

  3. Settlement / ILR

  4. EU Settlement

  5. Naturalisation as a British citizen

It is important to be aware that, for all such applications there are likely to be good character requirements to be satisfied, with a large degree of discretion to refuse on character grounds available to the Home Office.

When considering applications, the Home Office has access to a wide range of material held by other branches of the state. HM Prison and Probation Service (HMPPS) refer all EU and non-EU citizen foreign national offenders to the Home Office for deportation consideration.

While not all the material that is considered by the HO in determining applications is disclosed or should legally be taken into account, this does not mean such material cannot cause you problems, currently or in the future.

There is the strict letter of the law and what the Home Office may try to achieve, for instance colouring immigration judges against appellants by disclosing cautions, notes on police records etc which should not be used.

So while strictly cautions and other such disposals should not be taken into account by decision makers, they may be, though not referred to in negative decisions.

While unlawful decisions from the Home Office resulting from the incorrect exercise of discretion, for instance taking into account matters that should not be given weight, may be challengeable, such challenges are:

  • Slow

  • Expensive

  • good legal advice can be hard to access; and

  • Legal Aid (so free legal advice) is unlikely to be available.

Resolving such situations can take years during which the right to work / access to benefits / access to non-emergency medical treatment etc is lost – also taking vast amounts of emotionally energy.

Applications to Other Countries

It is also worth bearing in mind the implications for any future applications for entry to other countries.

Most visa applications have questions requesting disclosure of past immigration problems and criminal convictions - many go beyond simply disclosing actual convictions. There is information sharing within the EU which is likely to continue with whatever post-Brexit regime we end up with. It is less clear what information is shared with the US.

Non-disclosure or incomplete disclosure of your history in an application, if discovered, will certainly result in a refusal and in the case of the UK mandatory refusal of later applications.

Employer Checks

It is also worth bearing in mind more generally, some employers checks are now extremely rigorous and wide ranging. It is possible that some health insurance policies may also potentially exclude certain activist activities should you require health insurance as a condition of your leave.

Who are the actors?

  • Home Office  (HO) – determines all in country applications

  • Entry Clearance Officer (ECO) – determine applications for leave to enter (visas) made from abroad.

  • UK Border Force (UKBF) operate at the borders – airports and land borders (including juxtaposed controls eg. Northern France / Paris etc)

Potential consequences / what powers does the Home Office / UK Border Force have?

Which of the following consequences may be more likely to be imposed on you will depend on your immigration status at the time you come to the attention of the HO/ UKBF – some possibilities:

If you are arrested and are not obviously British, it is likely that the Police will do basic immigration checks and it is possible that the Immigration Officers would be notified.

In country:

  • For those who are settled, with current limited leave, EU nationals, refugees /HP what is likely to happen would be dependant on the charge. For a minor public order offence, it is likely that at that time immigration status would not impact on usual police procedure. However, for a more serious offence curtailment of leave, detention in an IRC, with potential implications for access to criminal bail once charged with a criminal offence are all possible.

  • If no current leave  - immigration will be contacted and IO’s would be likely to visit at the police stations with the likely consequence of  detention in an IRC, setting of removal directions (RD’s), limited access to legal advice and potentially no access to legal aid.

At the border:

  • Refusal of leave to enter (visa or non-visa nationals) – wide discretion, bounce back to country you travelled from. This would currently be more likely for a non-EU national

  • Curtailment of leave – IRC / or release on immigration bail – potential long battle with the HO to resolve with problematic access to good legal advice and limited access to legal aid.

EU Nationals:

Currently there are still two regimes running – old regime based on EU regs and the EU Settlement scheme to secure the rights of EU national post Brexit. Some EU nationals will still be thinking of applying for Permanent Residence (PR) under the old regime.

Old regime based on EU regs:

The Secretary of State may refuse to issue, revoke or refuse to renew a registration certificate, a residence card, a document certifying permanent residence or a permanent residence card if the refusal or revocation is justified on grounds of public policy, public security or public health, or on grounds of misuse of rights.

There is plenty of room for discretion – bear in mind that:

  • the personal conduct of the person must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent;

  • the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person.

 The EU Settlement Scheme:-

This is the process that has been put in place to deal with the situation of EU nationals following Brexit and the end of EU free movement rights. This is not a registration scheme, it is an application. As an application, so a request, it can be rejected. The most common reason for rejection so far and going forward is criminal convictions.

All applications for settled status will be checked against criminal records databases, presumably for both the UK and for other EU countries (while the UK remains within the EU and with access to such databases, at least). This is likely to reveal a substantial number of recent and historic offences among the cohort of people applying.

In short, EU citizens may face deportation action for historic offences if they have:

  • Received any sentence of imprisonment at all within the last five years

  • At any time (no matter how historic) received a sentence of 12 months or more for a single offence

  • For those resident for less than five years, if they in the last three years received three or more convictions (including with non-custodial sentences)

A final decision on whether to pursue deportation will be subject to a proportionality assessment by the Home Office on the individual facts of the case, presumably taking into account length of residence, family links to the UK and similar.

As discussed below, this is a very weak level of protection against deportation because the Home Office position on when EU citizens can and will be deported has changed massively over the last ten years while EU law remained, in theory, the same.

The Threshold :

The Home Office has stated that it will apply existing EU law on deportation to any previous criminal convictions for EU nationals. Future convictions after Brexit (and after transition if there is a transition period) will be subject to the current UK thresholds for deportation (see below).

 The EU-UK Withdrawal Agreement records this commitment in the event of a deal being reached on UK exit from the EU, and the UK has explicitly stated that the same approach will be followed in the event of a “no deal” scenario  

From the polices currently in place the position is that where an applicant for settled or pre -settled status meets any of the following criteria, he or she will be referred to Immigration Enforcement for consideration for deportation:

  • the applicant has, in the last 5 years, received a conviction which resulted in their imprisonment

  • the applicant has, at any time, received a conviction which resulted in their imprisonment for 12 months or more as a result of a single offence (it must not be an aggregate sentence or consecutive sentences)

  • the applicant has, in the last 3 years, received 3 or more convictions (including non-custodial sentences) unless they have lived in the UK for 5 years or more

  • the case is of interest to Criminal Casework in respect of deportation or exclusion, for example where the applicant is in prison and the case is awaiting deportation consideration

How would this work in practice? The applicable Immigration Rules state that an application for settled or pre-settled status will be refused on criminality grounds where a deportation decision has been made. This suggests that where an application for settled status is made and a person might meet the criteria for deportation, no decision will be reached on the application until the case has been referred to Immigration Enforcement and a decision made on whether to pursue deportation on the facts of the case.

This means:

  • A settled status application will presumably be put on hold, potentially for a long time, while considered for deportation

  • It is not clear that the applicant will be informed that this is what is happening

  • Immigration Enforcement may be overwhelmed by referrals, leading to substantial delays

  • It is only if the person is served with a deportation decision that the application for settled status will be refused

  • 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, notify of a right of appeal on human rights grounds or serve a “deport first, appeal later” notice requiring any appeal to be pursued from abroad

It is unknown whether the Home Office has given thought to the practical ramifications of its policy on criminality and how to manage the resulting casework. 

EU Deportation:

Since 01.04.15 HO policy is that:-

  • a single offence resulting in a custodial sentence of 12 months will lead to a decision to deport; as will

  • low level persistent offending being 3 convictions in the last 3 years

No Deal:

The general feeling is that the legal position of EU citizens with historic criminal offending would be highly uncertain and insecure in the event of no deal. If the commitment to apply EU law standards to past offending were to be met, legislation might be needed to disapply certain aspects of UK law and discriminate positively in favour of EU citizens in order to honour the commitment. It seems unlikely that such changes would be prioritised given the politics in the event of no deal and lack of public sympathy for convicted criminals.

Ultimately, it might be official policy not to deport EU citizens for relatively minor historic offences but UK law and practice might contrive to defeat official policy.

The default position in the event of “no deal” is that EU citizens become subject to the UK Immigration Acts and therefore section 3(5) of the Immigration Act 1971 on deportation becomes applicable:

A person who is not a British citizen is liable to deportation from the United Kingdom if—

1. the Secretary of State deems his deportation to be conducive to the public good; or

2. another person to whose family he belongs is or has been ordered to be deported.

This provision includes very wide discretion and can potentially be applied to historic offending.

If the Secretary of State were minded to try and protect the position of historic criminal offenders (unlikely) then she might consider introducing a policy about how this power is exercised which differentiates between EU citizens and other foreign nationals. Positive discrimination on the basis of nationality might be politically and legally difficult.

Does the UK respect EU deport law?

EU law protection in respect of deportation is considered to be quite robust. The UK’s current record on applying EU law is not however great. Essentially, there are three levels of protection depending on length of residence, less than 5 years, 5 years + PR, ten years.

However, there are several concerns arising:

  1. Deportation proceedings are frequently brought against EU citizens with relatively minor convictions who will almost inevitably win their appeal, if they appeal (many probably do not appeal as no legal aid is available and out of country appeals have been introduced). The success rate in all EU free movement appeals, which includes EU deportation cases, was around 51% for the first two quarters of 2018

  2. There is no longer any clear public guidance to Home Office caseworkers on minimum sentence or severity before deportation is pursued. This ambiguity and uncertainty does not adequately protect EU citizens

In short, the Home Office commitment to apply EU law standards when considering deportation for past criminal behaviour is not reassuring.

Future threshold once pre-settled or settled status granted:

Where a person is granted settled or pre settled status, that person can have that status taken away from him or her in future by way of deportation action under UK law for any subsequent criminal offending (or other activities attracting a “conducive to the public good” deportation)

Deportation Under UK law:

UK standards on deportation are complex but are well summarised in this Free Movement infographic:

 

Protection against deportation is far weaker in UK law compared to EU law so a sharp increase in deportation action against resident EU citizens would therefore be expected after the protection of EU law standards ceases to apply.

General Grounds for refusal – relevant for all non-EU nationals:

These should be of great concern to all non-EU nationals who wish to be able to remain in or travel regularly to the UK.

The general grounds for refusal can be applied to any application from entry clearance to settlement and to existing leave which can then be cancelled or curtailed. The IR’s are structured for the general grounds for refusal to apply to:-

  • Entry clearance and leave to enter - so at a border

  • Extension and variation applications for leave to remain – so in country

  • The cancellation or curtailment of leave to remain when something comes to light after leave has been granted – border and in country

  • Indefinite leave to Remain applications

Refusal of Entry Clearance / Leave to Enter :

Mandatory:-

  • when convicted of a criminal offence with a sentence of more than 12 months + subject to a re-entry ban the duration of which varies depending on the length of the sentence

  • On the personal direction of the SSHD when deemed conducive to the public good

Discretionary:-

  • within the 12 months prior to the date on which the application is decided, the person has been convicted of or admitted an offence for which they received a non-custodial sentence or other out of court disposal that is recorded on their criminal record;

  • in the view of the Secretary of State:

(a) the person’s offending has caused serious harm; or

(b) the person is a persistent offender who shows a particular disregard for the law.

  • The immigration officer deems the exclusion of the person from the United Kingdom to be conducive to the public good. For example, because the person’s conduct (including convictions which do not fall within the paragraph above, the person’s character, associations, or other reasons, make it undesirable to grant them leave to enter.

Refusal of leave to remain (extension / variation applications):

Mandatory Grounds for refusal:

  1. The person has been convicted of an offence for which they have been sentenced to imprisonment for at least 4 years; or

  2. they have been convicted of an offence for which they have been sentenced to imprisonment for at least 12 months but less than 4 years, unless a period of 15 years has passed since the end of the sentence; or

  3. they have been convicted of an offence for which they have been sentenced to imprisonment for less than 12 months, unless a period of 7 years has passed since the end of the sentence; or

  4. they have, within the 24 months prior to the date on which the application is decided, been convicted of or admitted an offence for which they have received a non-custodial sentence or other out of court disposal that is recorded on their criminal record

Applications should normally be refused on the grounds of:-

  • the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within the paragraph above, character or associations or the fact that he represents a threat to national security;

  • it is undesirable to permit the person concerned to enter or remain in the United Kingdom because, in the view of the Secretary of State:

    • (a) their offending has caused serious harm; or

    • (b) they are a persistent offender who shows a particular disregard for the law;

Refusal of Indefinite Leave to Enter or Remain:

Mandatory Grounds for refusal:

The person has been convicted of an offence for which they have been sentenced to imprisonment for at least 4 years; or

  1. they have been convicted of an offence for which they have been sentenced to imprisonment for at least 12 months but less than 4 years, unless a period of 15 years has passed since the end of the sentence; or

  2. they have been convicted of an offence for which they have been sentenced to imprisonment for less than 12 months, unless a period of 7 years has passed since the end of the sentence; or

  3. they have, within the 24 months prior to the date on which the application is decided, been convicted of or admitted an offence for which they have received a non-custodial sentence or other out of court disposal that is recorded on their criminal record

Naturalisation as a British citizen  - The Good Character Requirement:

If you see your future to be permanently in the UK, then for most people (aside perhaps those whose other nationality does not permit dual nationality) they need to consider seriously becoming British for their residence in the UK to be secure.

If you are not British:-

  • you cannot vote in national elections

  • you will always be at risk of deportation (automatic deport applies for any conviction of over 12 mths with wide discretion available to the HO for shorter sentences)

The nationality policy and guidance leaves the Secretary of State with enormous discretion.

The good character test engages a person’s behaviour before and after they arrived in the UK. All criminal convictions, however minor, including spent convictions, must be declared (immigration and nationality decisions being exempted from section 4 of the Rehabilitation of Offenders Act 1974).


Broadly, convictions will be dealt with as below:

[INSERT TABLE]
 

 

The applicable guidance explains that some minor convictions may be disregarded, and useful advice is given as to the effect of receiving a fixed penalty and similar notices which “do not form part of a person’s criminal record as there is no admission of guilt”.  It also clarifies that the ‘end of the sentence’ is not the release date but the end of the sentence imposed, and that a suspended prison sentence is treated to fall within row 4 of the table above.

The person’s immigration history will also be considered. Citizenship will normally be refused ‘if within the 10 years preceding the application the person has not been compliant with immigration requirements’. All breaches will be taken into account, including illegal entry, failure to report, breach of conditions, overstaying, and failure to report. So for instance if an application to enter or extend is refused and a gap in leave occurs albeit later rectified / successfully challenged - this could result in a future application for citizenship failing.

Remedies:

 There will be remedies available against any negative decision, whether and appeal in or outside of the UK or judicial review. However, the issue will be how effective and accessible that remedy may be. Factor to consider would be :-

  • how long it will take - could be many months / years

  • your status during that time – can you still work etc

  • will it be in or out of country

  • there is likely to be no or very limited access to free legal advice -Legal Aid

  • Accessing good quality paid legal advice in the time that you have available

Summary:

The wide discretion available to the Home Office and decision makers, the politicisation of anything related to immigration and the lack of certainty about how the state will respond going forward to climate emergency related activism, means that for anyone who is not British and  who in the future envisages wanting or needing to make any application to the Home Office, being arrested has real potential negative implications.

As at  - 15.09.19 

Materials included from  -