Last updated: 12 July 2022
Immigration Status
Non-UK nationals should be aware that both arrest and conviction may have serious implications for their present and future right to stay in the UK. You should seriously consider the information on this page before taking any action that may result in your arrest.
This page gives a broad overview of issues you will need to consider. There is more detailed information on our ‘Arrest and Immigration Status’ page here. Neither page can offer comprehensive information covering all situations, and they should not be taken as formal legal advice. Other organisations such as the Joint Council for the Welfare of Immigrants (JCWI) (here) have published similar guides which you may find helpful to read. It is always sensible to seek expert legal advice if you have worries about your immigration status.
Most importantly, if you have concerns about the potential impact on your immigration status, you should not feel pressured into taking actions that might lead to your arrest regardless. There are ways you can support climate action without putting yourself at personal risk of arrest: see the Extinction Rebellion ‘join us’ page.
Each case is unique and there is no uniform answer on how arrest will affect your immigration status. There are two main areas to think about:
(1) Current immigration status
If you are in the UK as a non-British citizen, in most cases you will have some form of permission to be in the country. This can be:
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Limited leave to remain |
For a fixed period before it expires.
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Indefinite leave to Remain (‘ILR’) |
No time limit (also known as settlement).
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The legal terms are:
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Leave to enter |
Made from outside the UK. Also known as permission to enter. |
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Leave to remain |
Made from inside the UK. Also known as permission to stay. |
Citizenship has its own rules on cancellation (called ‘deprivation’) which we discuss briefly on the ‘Arrest and Immigration’ page linked above. Section 10 of the Nationality and Borders Act 2022 (‘NBA’) now enables the Secretary of State to use this power to deprive a person of their citizenship without giving them prior notice in certain circumstances
The Home Office has broad powers to cancel a person’s permission to be in the UK. These are found at Part 9 of the Immigration Rules. The Home Office’s powers of “cancellation” depend on whether a person has limited or indefinite leave to remain (settlement) and whether they are inside or outside the UK. The Home Office now uses the blanket term “cancellation” to refer to three different legal processes: curtailment, cancellation and revocation.
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Curtailment |
Applies to limited leave only. A person with limited leave can have it curtailed on the grounds set out in Part 9. |
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Cancellation |
Only applies when the person is out of the country or at a port of entry. It applies to both limited and indefinite leave to remain and will take place on the grounds set out in Part 9. |
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Revocation |
Only applies to indefinite leave to remain, and can only take place on the very limited grounds set out in section 76 of the Nationality Immigration and Asylum Act 2002. |
Broadly, your permission to be in the UK will be cancelled if the Home Office decides your presence is “not conducive to the public good” (paragraph 9.3.2). To understand what this term actually means you should read the Home Office guidance called Suitability: non-conducive grounds for refusal or cancellation of entry clearance or permission, published on gov.uk here. This gives examples of situations where the Home Office will decide that a person’s presence in the UK is ‘not conducive to the public good’. You do not need to have a criminal conviction for the Home Office to cancel your permission to be in the UK for this reason. We discuss this guidance in more detail on our ‘Arrest and Immigration’ page here.
Your leave in the UK may also be cancelled on the grounds of criminality (paragraph 9.4.1 – 9.4.5). So, if you are prosecuted after arrest and sentenced to imprisonment for 12 months or more, your permission to be in the UK will be cancelled (paragraph 9.4.2.(a)). Your permission to be in the UK will also be cancelled if the Home Office decides you are a ‘persistent offender’ (9.4.2.(b)) or that your offending has caused ‘serious harm’ (9.4.2.(c)).
Note that in all of these circumstances the Home Office must cancel your leave so you will have no right to stay in the UK. You can challenge this decision, either by an appeal or by bringing a ‘judicial review’, depending on the circumstances. (We explain this in more detail in the ‘Arrest and Immigration’ page.) A challenge might succeed if, for example, you have strong family ties in the UK. But there is never any guarantee of this. And the process of an appeal or judicial review is typically slow, distressing and expensive.
It is important to be aware that there are circumstances where your permission to be in the UK may still be cancelled if you are prosecuted and convicted but are sentenced to less than 12 months’ imprisonment, are not a ‘persistent offender’, and did not cause ‘serious harm’ by your offending (paragraph 9.4.5). The Home Office will have a discretion whether to cancel your permission to be in the UK in these circumstances. This means they are not legally required to cancel your permission, but may still decide to do so in the circumstances.
It is also worth noting, that those who have been convicted and given a custodial sentence of 12 months or more, will also be subject to the provisions of automatic deportation. Section 32(5) of the UK Borders Act 2007 states that the Home Secretary in these circumstances must make a deportation order. The decision (which is a decision to refuse a human right’s claim) is appealable and certain exemptions do apply.
If your permission to be in the UK is cancelled, you will lose the right to work, rent a home, access benefits, and access non-emergency medical treatment.
Some people reading this page might be in the UK without permission. For example, if they previously had limited permission which expired, and they did not make an application for further leave to remain in the UK. In this case, arrest may lead the Home Office to take action to remove you from the UK.
Lastly, you might not currently have permission to be in the UK, but have made an application and be waiting for a decision, for example, if you are an asylum seeker. If an asylum-seeker commits a "particularly serious crime”, the Home Office could subsequently argue that they are disentitled from the benefits of refugee status under Article 33(2) of the Refugee Convention. Legislation defines a particularly serious crime as including any crime if you are sentenced to 12 or more months’ imprisonment
If an individual were able to establish that their removal would be a breach of their Article 3 rights (torture or to inhuman or degrading treatment or punishment) this would entitle them to restricted leave. But this is much less favourable than a grant of refugee status.
(2) Future immigration status
If you have limited permission to be in the UK, you may hope to extend your stay. You might want to eventually acquire settlement and then citizenship. If you intend to leave the UK when your permission ends, you may still want to return in future, on a long-term basis or even just for a holiday.
The Home Office will refuse future applications for permission to enter or stay in the UK for the same reasons that they will cancel existing permission. You may have heard the concept of a ‘spent’ conviction. In the immigration context applicants are required to disclose all convictions, regardless of whether or not they are ‘spent’ under the Rehabilitation of Offenders Act 1974 Act.
With thanks to Syed Naqvi and Maha Sardar for writing and reviewing the above guidance