Last updated: 13 July 2022
- With the UK government’s express policy of constructing a hostile environment for migrants perceived as undesirable, in recent years the Home Office has increasingly used criminality and good character requirements as a tool to exclude people. What follows will seek to provide an overview of how wide ranging these provisions can be and the large degree of discretion that is available to the Home Office and associated organisations. It is not intended to be legal advice.
- If you have specific concerns about your current status, or in respect of any planned future applications to the Home Office, you must seek specific expert legal advice.
- If you have concerns about your 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 making to XR. Be extremely cautious about taking this step unless you are really not concerned about consequences that may follow. Remember that your long-term ability to support climate action in the UK is best-served if you are able to remain in the UK. There are ways to support climate action that do not involve putting yourself at personal risk of arrest.
- The current and possible potential implications of being arrested are extremely broad, and hard to give reliable advice upon. A number of factors make certainty 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, and the extent to which this regime applies to Extinction Rebellion is untested. However, the relevant legal tests and definitions are very broad, so it should be assumed that this is a real possibility.
NB. The Home Office has recently updated key terms and phrases used in the immigration context. If reading guides from other sources, you may find that the old language continues to be used. Broadly, the key changes are: “leave to remain” is now “permission to stay”; “entry clearance” is now “permission to enter”; and “curtailment of leave” is now “cancellation of permission”.
For most purposes, “permission to stay” and “permission to enter” are synonymous, and simply refer to permission to be in the UK. This page uses “permission to be in the UK” informally to refer to both.
The Nationality and Borders Act 2022 has now come into force. The Act makes significant changes in the area of immigration such as limiting certain appeal rights, creating a new ‘Priority Removal Notice’ and making it easier to strip refugees who offend of their protection status. We address these changes where relevant below.
Immigration status and arrest / criminality:
When taking the decision as to whether you can accept the risk or certainty of arrest, you need to be thinking about:
- Your current immigration status. Could the Home Office cancel your permission to be in the UK and require you to leave the UK?
- Any future planned applications to the Home Office for further permission/settlement. The Home Office may refuse future applications even if they do not take action to cancel your current leave.
- In the medium and long term, do you see your future in the UK? If so, you will need to be able to successfully apply for permission/settlement. Being in the UK without permission will expose you to the ‘hostile environment’ – you will be unable to work, rent, claim benefits, or access non-emergency medical care on the NHS. You may be detained if you do not leave the UK voluntarily.
Immigration status: Current – what are the possibilities?
The implications of any arrest, prosecution or conviction will depend on your immigration status. Even British citizens may be at risk of having their citizenship deprived if they are convicted of a serious enough offence. There are five basic types of immigration status that an individual can have:
- British citizenship (including dual-nationals).
- Indefinite leave to remain (permanent permission to be in the UK; also called ‘settlement’).
- Limited leave to remain (permission to be in the UK that will expire after a certain time).
- No status, with an application pending.
- No status, without an application pending; whether or not known to the Home Office.
The reason why you were granted leave to remain is also important. For example, you may have been granted leave to remain:
- As a refugee or a beneficiary of humanitarian protection. Refugees and beneficiaries of humanitarian protection are normally granted five years’ limited leave to remain, and are then granted indefinite leave to remain (‘settlement protection’) after five years. They have certain rights and protections that other migrants do not have.
- As part of the EU Settlement Scheme (EUSS). Beneficiaries of the EUSS may have been granted limited leave to remain (‘pre-settled status’) or indefinite leave to remain (‘settled status’). Again, beneficiaries of the EUSS have certain rights and protections that other migrants do not have.
- On some other basis. For example, as a family member of a British citizen, or as a Points Based System migrant (such as a worker or student) or a family member of a Points Based System migrant.
If you had limited permission to be in the UK and applied to extend your permission before the expiry of your leave, but your extension application has not yet been decided, you will have what is called ‘Section 3C’ leave. (This refers to Section 3C of the Immigration Act 1971.) In other words, your previous leave (before its expiry) is deemed to continue until the determination of your further application. The same is true if you have had an application refused but are appealing, or the deadline to appeal has not yet passed, or are seeking ‘administrative review’ (a sort of internal appeal made to the Home Office). Section 3C leave effectively extends your existing permission, so the same restrictions and terms will apply. You will not have Section 3C leave if you made your application after your existing leave had already expired.
Planned future applications to the Home Office / other countries:
You should also bear in mind any future immigration applications you may wish to make. These may be any of the following types:
- Permission to enter or stay in the UK
- Settlement / ILR
- Naturalisation as a British citizen
The exact impact of a past arrest, prosecution or conviction may differ across these various types of applications. However, each application is subject to some form of good character or suitability requirement. Home Office decision-makers have a large degree of discretion to refuse applications on character/suitability grounds.
It is important to note that there is no such thing as a ‘spent’ conviction for immigration purposes. If you are convicted once, you must declare this in all future immigration applications. When considering applications, the Home Office has access to a wide range of material held by other branches of the state.
Your criminal history – arrests, prosecutions (successful or unsuccessful) and convictions may be relevant in multiple ways:
- First, the Home Office might decide you are not a ‘suitable’ person to be granted permission. Suitability requirements apply to all immigration routes and must be met in addition to validity and eligibility requirements. If Part 9 of the Immigration Rules applies, a person will not meet the suitability requirement and may have their permission to enter/stay cancelled.
- Second, if you are applying to stay in or come to the UK outside a formal immigration route (called an application ‘outside the Rules’), for example relying on your human rights, the Home Office may take into account any offending which may not necessarily be enough to justify an ‘unsuitability’ decision. If you appeal a refusal, they may raise these same points before an Immigration Judge at a Tribunal.
At this stage, the exact nuances of how these matters are taken into account by decision-makers and judges are not too important. What matters is that you are aware of the potential significance of even an arrest which does not lead to prosecution.
Appeals and judicial review
It is usually possible to challenge the Home Office’s decision in one form or another. If the decision relates to refugee status, humanitarian protection or human rights, it may be possible to appeal to the First-tier Tribunal (Immigration and Asylum Chamber). Some decisions under the EU Settlement Scheme are also appealable.
Many other immigration decisions do not attract a right of appeal. If you do not have a right of appeal, it may be possible to apply for judicial review of the Home Office’s decision. A judicial review is different from an appeal. In a judicial review, the judge does not normally make the decision for themselves – they review the Home Office’s decision to see whether the decision was lawful. There are some exceptions to this, and you should always seek legal advice on your specific circumstances if you receive a decision to refuse your application or to cancel your existing leave.
However, both appeals and judicial review applications are slow and expensive. It can be difficult to access good legal advice. Legal aid (free legal advice and representation) may be available if your claim relates to asylum or humanitarian protection, or if you are bringing a judicial review claim – but this will only be the case if your income and assets are low enough to meet the legal aid means test. Immigration applications and appeals (other than asylum and humanitarian protection) are generally not covered by the legal aid provisions.
Appeals are becoming increasingly more difficult with the introduction of ‘Priority Removal Notices’ and ‘expedited appeals’ by the Nationality and Borders Act 2022. If the Home Office is considering removing or deporting you from the UK, they will be able to issue you a Priority Removal Notice requiring you to state any reasons you should be allowed to stay by a specified deadline. (We don’t know yet what this deadline will be, but it is safe to assume that people will not be given long to respond to these Notices.) If you don’t respond by the deadline and the Home Office think you don’t have a good reason for this, and they decide to go ahead with removal or deportation, you will only be allowed an ‘expedited appeal’.
Ordinary appeals are brought in the First-tier Tribunal, which means you can appeal again to the Upper Tribunal if needed. Expedited appeals will have to be brought in the Upper Tribunal, making it much harder to appeal if you lose. There are also limitations on legal aid for expedited appeals. It is also being made harder to appeal immigration decisions if you are in immigration detention, with shorter time limits and less time to prepare your appeal than normal. The relevant provisions in the Nationality and Borders Act have not been brought into force yet, but could become law at any time.
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 to which the UK has access (albeit to a much-reduced extent after Brexit). 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 potentially refusal of later applications on the basis of previous deception.
Employer Checks and Insurance
It is also worth bearing in mind more generally that some employers now operate extremely rigorous and wide-ranging criminality checks. In particular, if you are in a job that requires an ‘enhanced DBS’ check (such as a job working with children or vulnerable adults) your arrest may be taken into account by your employer, even if it did not result in a criminal conviction. It is possible that some health insurance policies may also potentially exclude certain activist activities. You should bear these points in mind if your permission to stay in the UK is employment-based (e.g. you have a ‘Skilled Worker’ visa) or if you require health insurance as a condition of your leave.
Potential consequences / what powers does the Home Office / UK Border Force have?
As noted, the Home Office’s response to an arrest, prosecution or conviction will depend on your immigration status and history. Both the relevant legal tests and the practical reality of Home Office decision-making may differ. The following is a rough guide.
If you are arrested and are not British, it is likely that the police will do basic immigration checks and it is possible that the Immigration Officers would be notified. If you have no immigration leave (and no outstanding protection or human rights claim), it is possible that Immigration Officers will visit at the police station. If they do, you may then be moved to detention in an Immigration Removal Centre (‘IRC’), and directions could be set for you to be removed from the UK. (If you are in this position, in the UK without permission and with no outstanding application, it is strongly recommendable that you apply for permission to stay and ‘regularise’ your status if you believe there is some basis for you to remain in the UK.) Some Law Centres offer free advice on immigration applications that you may be able to make in your circumstances. Otherwise, the Joint Council for the Welfare of Immigrants may be able to direct you to a suitable source of advice, see their contact page.)
For those with some form of permission to be in the UK, what is likely to happen would depend on the charge, if any. But as a general rule, it is possible that if you are charged with a criminal offence the Home Office will take an interest in you. If you are convicted and sentenced to 12 months’ or more imprisonment, the Home Office will take deportation action against you and you are likely to be detained in immigration detention at the end of your criminal sentence. Even if your offence is a more minor one, it is possible that the Home Office will take deportation action, or take action to cancel your leave, and that you could be detained.
We provide an overview of the relevant legal thresholds below. Bear in mind that the Home Office has a wide discretion on whether to take action against you. Further, even if the Home Office has acted beyond its powers, legal challenges can be slow and expensive, and (depending on the circumstances) you may be detained, or left with no status (and therefore no right to work, claim benefits or rent accommodation) for an extended period.
You are not ‘in the clear’ if the Home Office takes no action to cancel your leave immediately. If you have limited permission to be in the UK, the Home Office may rely on your arrest etc. to refuse any future application for permission to stay in or enter the UK. The legal thresholds for refusal of future immigration applications are similar to the thresholds for cancellation of current leave.
If you are convicted of any offence, the Home Office may consider deporting you from the UK. The likelihood of this depends on the length of the sentence you receive.
12 months or more
If you are convicted of an offence and sentenced to imprisonment of 12 months or more, you will be subject to “automatic deportation”.
Despite the title “automatic deportation” it does not necessarily mean that everyone who meets the threshold is deported automatically. People facing automatic deportation can rely on exceptions – for instance, if their deportation would breach the Refugee Convention or the European Convention on Human Rights. If you rely on one or more of these exceptions, you will normally have a right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber) before you are deported.
Many people facing deportation seek to rely on their right to private and family life (Article 8 of the European Convention on Human Rights), for instance because they have lived in the UK for a long time and/or have family in the UK. However, the threshold for successfully resisting deportation on this basis is very high. There is a high risk that you will lose your appeal, especially if your offence is a serious one. In some cases you can be deported even if you have been in the UK for most of your life and/or have a British partner and children. Each case turns on its own facts and the test involved depends on the length of your criminal sentence – there is a higher test to meet if your sentence was 4 years or more. Even if you think you would have a very good case to stay in the UK despite a deportation order being made, you should think very carefully before taking this risk.
Less than 12 months
If you are convicted of an offence and receive a sentence of less than 12 months, or an alternative to imprisonment such as a community order, you may be subject to discretionary deportation. The Home Office may, but will not necessarily, order your deportation. They will do so if they think your deportation would be ‘conducive to the public good’. The Immigration Rules on deportation (part 13) do not define this term. The phrase is taken from section 3(5)(a) of the Immigration Act 1971, which similarly provides no definition. In the context of human rights appeals, the Rules suggest that deportation will be in the public good where offending has caused “serious harm” or the offender is a “persistent offender” (paragraph 398(c) in Part 13). The Criminality guidance explains (page 9) that:
“Persistent offender’ means a repeat offender who shows a pattern of offending over a period of time. This can mean a series of offences committed in a fairly short timeframe, or which escalate in seriousness over time, or a long history of minor offences.”
“It is at the discretion of the Secretary of State whether he considers an offence to have caused serious harm.
An offence that has caused ‘serious harm’ means an offence that has caused serious physical or psychological harm to a victim or victims, or that has contributed to a widespread problem that causes serious harm to a community or to society in general.
The foreign criminal does not have to have been convicted in relation to any serious harm which followed from their offence…
Where a person has been convicted of one or more violent, drugs or sex offences, they will usually be considered to have been convicted of an offence that has caused serious harm.”
The Non-conducive grounds guidance (albeit in the context of cancellation of leave, not deportation) gives a series of examples of behaviour which make a person’s presence in the UK ‘not conducive to the public good’. They suggest serious criminality is necessary. However, several are broadly-phrased and could capture activity carried out as part of climate activism. For instance, page 10 lists “advocating or being involved in rioting, violent disorder or affray” as an example of undesirable behaviour. The Guidance elsewhere refers to involvement in “terrorism”, a concept defined very broadly in UK law (section 1 of the Terrorism Act 2000) to include the use or threat of “serious damage to property” in a way designed to influence the government.
The important point for you to understand is that these are very broad terms. If the Home Office decides they apply to you, your only recourse will be an appeal (if you think deportation breaches your human rights) or a judicial review (if you think deportation is inconsistent with the policy guidance, was irrational, or was otherwise illegal). As emphasised above, both processes are difficult and uncertain to succeed.
Separately from deportation, the Home Office may decide to cancel your leave to remain (i.e. your permission to be in the UK) under Part 9 of the Immigration Rules. The term “cancellation” in immigration law can cause confusion. The Home Office has three separate legal powers to bring a migrant’s leave to an end – curtailment, cancellation and revocation. They apply in different circumstances and to different types of leave. However, since December 2020 Part 9 of the Immigration Rules has been amended, and now uses the term “cancellation” indiscriminately for all three powers.
If you are in the UK with limited leave to remain and you are convicted of a criminal offence, the Home Office may cancel your leave on the basis of the grounds set out in Part 9. The following grounds are particularly relevant:
- Cancellation of leave is mandatory – i.e. the Home Office must cancel your leave – if you have been convicted of a criminal offence in the UK or overseas for which you received a criminal sentence of 12 months or more; you are a persistent offender who shows a particular disregard for the law; or you have committed a criminal offence which caused serious harm.
- Cancellation of leave is also mandatory if your presence in the UK is not conducive to the public good. As above, this term is not defined. It could include, for instance, involvement in criminal activity that has not resulted in a conviction.
- Cancellation of leave is discretionary – i.e. the Home Office may cancel your leave – if you have been convicted of a criminal offence in the UK or overseas for which you receive a criminal sentence of less than 12 months, or for which you receive a non-custodial sentence or an out-of-court disposal that is recorded on your criminal record. Thus, even if you do not meet the threshold.
If you have leave to remain (whether limited or indefinite) and you are outside the UK, the Home Office may cancel your leave while you are still outside the UK or when you are at a port of entry, on the basis of the grounds set out in Part 9. If you are outside the UK, the Home Office will also cancel your leave if the Home Secretary personally directs that your exclusion from the UK is conducive to the public good (which can happen in cases with political or national security implications).
In some cases, the Home Office will not take deportation action against you but will still decide to cancel your leave because of your offending. There are two main differences between imposition of a deportation order and cancellation of leave:
- If a deportation order is made, you are more likely to be detained in immigration detention and less likely to be granted bail. By contrast, if your leave is cancelled but a deportation order is not made, you are more likely to be given a chance to leave the UK voluntarily before enforcement action is taken against you. However, this is not an invariable rule, and you may be detained and removed from the UK even if no deportation order has been made.
- If you are deported from the UK, there is an automatic re-entry bar for 10 years (Part 9 of the Immigration Rules, table at paragraph 9.8.7). If your leave is cancelled and you do not leave the UK voluntarily, so that the Home Office takes administrative action to remove you at public expense, the same 10 year re-entry bar applies. If your leave is cancelled and you leave the UK voluntarily at your own expense, there is a shorter re-entry bar of 12 months. If you leave voluntarily at public expense, there is a re-entry bar of 2 years or 5 years, depending on how long you take to leave the UK after being told you must leave (less than 6 months or more). In each case, your future applications may still be refused even after the mandatory entry-bar has elapsed (see below).
Note that neither deportation nor cancellation of leave require you to have been convicted of an offence. The Home Office needs to be convinced on the ‘balance of probabilities’ that you have committed acts making your presence in the UK ‘not conducive to the public good’. (I.e. they must think that it is more likely than not that you committed the relevant acts.) The strength of the Home Office’s evidence may be relevant in a legal challenge. Evidence just meeting the balance of probabilities might be less likely to outweigh a strong family life in the UK, for example. But, as explained above, you do not want to be in the position of having to make such a challenge.
If you are in the UK with indefinite leave to remain (settlement), then the Home Office can still take deportation action against you. If the Home Office does not take deportation action against you, it can take action to revoke your indefinite leave. The Revocation of Indefinite Leave guidance explains when the Home Office will do this. In short, they can revoke your indefinite leave if any of the following applies:
- You are liable to deportation but cannot be deported for legal reasons. This could apply, for instance, if you meet the threshold for deportation but the Home Office accepts that your removal would breach your human rights.
- You obtained your indefinite leave through the use of deception.
- You were a refugee and you have lost your refugee status for certain specified reasons (for instance, because you have re-availed yourself of the protection of your home country).
If you are not subject to deportation action, and you do not meet any of the above criteria, then the Home Office cannot take away your indefinite leave as long as you are in the UK. Please note, however, that if you are outside the UK or returning to the UK via a port of entry, the Home Office can cancel your indefinite leave on the basis of the grounds set out in Part 9.
British Citizens – deprivation
Even if you have British citizenship, the Home Office can decide to deprive you of citizenship if they think it is not ‘conducive to the public good’ that you remain a citizen. See the Chapter 55: Deprivation and nullity of citizenship guidance. This is an extreme measure, and should be reserved for very serious offending. The guidance explains that ““Conduciveness to the Public Good” means depriving in the public interest on the grounds of involvement in terrorism, espionage, serious organised crime, war crimes or unacceptable behaviours.”
As noted above, the definition of terrorism in UK law is very broad. While the government has not to date used citizenship deprivation as a tool against climate activists, you should be aware, depending on the seriousness of the action that you intend, that they may do so in future.
Those subjected to citizenship deprivation have a right of appeal, either to the First-tier Tribunal (Immigration and Asylum Chamber) or to a special tribunal called the Special Immigration Appeals Commission if the Home Office claims the case involves sensitive security or intelligence issues. As with all legal challenges, appealing citizenship deprivation is difficult, expensive, stressful, and has no certainty of success.
The Nationality and Borders Act 2022 has introduced a power to enable the Home Office to deprive a person of their citizenship without notice. They only apply if the Home Office does not have the information it needs to give you notice, for instance if they have no address for you, or where the Home Office reasonably consider it necessary not to give notice, in the interests of “(i) national security, (ii) the investigation or prosecution of organised or serious crime, (iii) preventing or reducing a risk to the safety of any person, or (iv) the relationship between the United Kingdom and another country”. Otherwise, the Home Office will still need to give you notice before depriving you of your citizenship, just as before the Nationality and Borders Act. The relevant provisions are not yet in force; they will become law when ordered by the Secretary of State.
These should be of great concern to all foreign nationals who wish to be able to remain in or travel regularly to the UK.
The general grounds for refusal (Part 9 of the Immigration Rules) can be applied to any application from permission to enter to settlement and to existing leave which can then be cancelled or curtailed.
In large part they mirror the grounds on which leave may be cancelled (above). They differ in the following respects:
- If you were deported from the UK, any application you make to re-enter will be refused while the deportation order remains in force (Part 9, paragraph 9.2.1.(c)). This will be for 10 years if you were deported after conviction for an offence for which you were sentenced to imprisonment of less than 4 years; if you were sentenced to imprisonment of 4 years or more the deportation order will remain in place indefinitely (Immigration Rules Part 13, paragraph 391). In the former case, the Home Office may decide to maintain your deportation order for more than 10 years, deciding on a “case by case basis” whether to do so (Part 13, paragraph 391(a)). If you were deported without having been convicted and sentenced to imprisonment, the Home Office will consider on a case by case basis whether they think enough time has passed that the deportation order should be revoked (Part 13, paragraph 391A). As you will see from these Rules, therefore, the Home Office has a very broad discretion to bar you from returning to the UK indefinitely once you have been deported. There is a slim possibility of applying for a deportation order to be revoked early in reliance on your human rights (see this page on freemovement.co.uk).
- If you are applying to come to the UK as a Visitor or otherwise for less than 6 months, your application will be refused if in the last 12 months you have been convicted of a criminal offence and sentenced to imprisonment for less than 12 months (Part 9, paragraph 9.4.4).
Note that, with the one exception of paragraph 9.4.4. just mentioned, there is no time bar on applications being refused for past criminality. If you are convicted and sentenced to 12 months’ imprisonment, or if you are considered a persistent offender or to have caused serious harm (all paragraph 9.4.1 of Part 9), all future applications for leave will be refused. (This is the position under the present Immigration Rules. It is of course in theory possible that a future government will relax this strict approach. But it has never been wise to plan on the assumption that any future government will be kinder to immigrants; the pattern has nearly without exception been of increasingly strict rules over time, whatever party is in government.)
If you do not meet the ‘criminality’ thresholds in paragraph 9.4.1 (12 months’ imprisonment; persistent offender; serious harm), your application will still be refused if the Home Office think your presence in the UK is not conducive to the public good. Unlike the criminality thresholds, it is at least possible in theory that the passage of enough time may persuade the Home Office to admit you to re-enter the UK. However, they have no obligation to do so, and there are no specified ‘time bars’ on re-entry after committing acts that are ‘not conducive to the public good’. The Home Office may well be able to prevent you from ever returning to the UK even if you do not meet the ‘criminality’ thresholds.
Asylum and humanitarian protection
The thresholds for revoking refugee status or humanitarian protection are higher than the other thresholds discussed above.
If you are a refugee or a beneficiary of humanitarian protection and you commit a serious crime, the Home Office is likely to take deportation action against you and to review your refugee/humanitarian protection status. This can result in several things:
- If you are convicted of any crime, whatever sentence you receive the Home Office will reconsider whether you are still in need of protection. If you are not (for instance, because the political situation in your home country has changed), they may “cease” your refugee status (under Article 1C of the Refugee Convention) or revoke your humanitarian protection. This may lead to you being deported, unless you have another basis for challenging deportation (for instance, because deportation would breach your human rights).
- If you are still at risk on return to your home country, but the Home Office decides that you have committed a “particularly serious crime” and are a “danger to the community”, the Home Office may decide that you are no longer entitled to the benefits of refugee status (under Article 33(2) of the Refugee Convention) or revoke your humanitarian protection. If you are convicted and sentenced to at least 12 months’ imprisonment, legislation defines your offence as “particularly serious” and creates a presumption that you are a danger to the community. In these circumstances you are likely to be able to argue that you cannot be deported because deportation would breach your human rights – but you may lose your refugee status/humanitarian protection and your existing leave to remain. The Home Office may grant you “Restricted Leave” for six months at a time, and place restrictions on your activities in the UK, with a view to deporting you in the future if the situation in your country changes.
You will normally have a right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber) against the decision to revoke your refugee status or humanitarian protection.
Naturalisation as a British citizen - The Good Character Requirement:
If you see your future to be permanently in the UK, you may well be hoping to eventually acquire British citizenship. So long as you are not a British citizen:
- you may be unable to vote (although Commonwealth citizens who have leave to remain can normally vote)
- you will always be at risk of deportation (above)
The nationality policy and guidance leaves the Secretary of State with enormous discretion. To become a British citizen you must meet a ‘good character’ requirement. This test looks at your behaviour before and after you 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).
The applicable guidance (and additional guidance on the ‘good character’ requirement here) gives more detail. Some minor convictions may be disregarded. Fixed penalty and similar notices may also be disregarded, as they involve no admission of guilt. Even then, the guidance is expressed in discretionary terms: receiving a fixed penalty notice “will not normally result in refusal” but “multiple fixed penalty notices over a short period of time could demonstrate a disregard for the law and therefore demonstrate that someone is not of good character”. The guidance is similar in relation to police cautions.
If you are convicted and imprisoned, there will normally be a mandatory ban on acquiring citizenship for a given number of years, depending on the length and type of sentence imposed. If you are imprisoned for 4 years or more, you will normally be permanently barred from acquiring British citizenship (Naturalisation guidance page 30).
Your immigration history will also be considered. Past deportation or cancellation of leave may therefore be relevant.
The EU Settlement Scheme
Before Brexit, different thresholds applied to EU nationals, drawn from EU law. These remain relevant in relation to offending committed prior to the implementation of the UK-EU Withdrawal Agreement. For future offending, which is the subject of this note, the same UK-law standards apply to all persons, including those on the EU Settlement Scheme. (See the Introduction to the guidance on EEA Public Policy decisions, page 6). Therefore, from 1 January 2021 the UK’s criminality thresholds will apply to EU nationals in respect of any criminal conduct committed after 31 December 2020.
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.
If at all concerned about the impact of action you are considering on your present or future immigration status, you should strongly consider taking alternative action which would avoid the risk of arrest.
If you would like more detailed guidance than is given on this page, the following official Home Office guidance is relevant:
- Cancellation and Curtailment of Permission (6 October 2021)
- Grounds for Refusal: Criminality (9 November 2021)
- Suitability: non-conducive grounds for refusal or cancellation of entry clearance or permission (10 November 2021)
- Detention: General instructions (14 January 2022)
- EEA Public policy, public security or public health decisions (17 November 2021)
- Exclusion from the UK (26 November 2021)
- Revocation of indefinite leave (16 August 2021)
- Conducive deportation (25 November 2021)
- Criminality: Article 8 ECHR cases (13 May 2019)
A list of all Home Office guidance relating to general grounds on which applications will be refused is published on gov.uk here. A list of all Home Office guidance relating to criminality and detention is published on gov.uk here.
These guidance documents are published for Home Office caseworkers, and decisions can be challenged as unlawful if they do not follow the guidance. They therefore give a good indication of the Home Office’s approach.
With thanks to Syed Naqvi and Maha Sardar for writing and reviewing the above guidance