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Date: 3 November 2015

I have been asked a lot recently as to whether an applicant’s criminal record will affect their immigration application. A “spent” conviction means that after a certain period of time, a criminal record is considered to have expired, i.e. the person does not have a criminal record anymore.  Changes regarding spent convictions occurred in March 2014 and this is governed by the updated law called “Rehabilitation of Offenders Act 1974”. Before 11 December 2014, all criminal convictions that were spent did not need to be disclosed in immigration applications. However, the Immigration Rules are now changed so that disclosure of criminal convictions for immigration applications does not match the 1974 law.

This article provides a unique and simplistic overview to criminal convictions being spent for the purposes of criminal and immigration law. Immigration law is split between Indefinite Leave to Remain (ILR) and British Citizenship applications. This will help the public understand the law as the internet does not seem to have such a comparative study to date.

The Position Under Criminal Law – 1974 Law

Under the 1974 law, a table showing how long it takes for each sentenced to be spent is shown below. The “buffer” period refers to the time counting from the end date of the sentence. For example, a person gets a 2 years custodial sentence for robbery. The buffer period of 4 years + 2 years sentence = 6 years, before the conviction is spent.

Criminal Law – when is a conviction spent?
Sentence type: Buffer period before sentence spent:
Custodial sentence of over 4 years Never spent
Custodial sentence of over 2.5 years to 4 years 7 years
Custodial sentence of over 6 months and up to 2.5 years 4 years
Custodial sentence of 6 months or less 2 years
Community order 1 year
Fine 1 year
Conditional discharge Period of the order
Absolute discharge None
Conditional caution 3 months
Simple caution Spent immediately
Compensation order When it is paid in full

“Custodial sentence” also includes a “suspended sentence” – this occurs where a person does not go to prison unless he also commits a further offence during a specified period.

The Position Under Immigration Law

ILR applications

Immigration Law – ILR applications
Sentence type: Buffer period before sentence spent:
Imprisonment of 4 years or more Never spent
Imprisonment of 1 year to under 4 years 15 years
Imprisonment of less than 1 year 7 years
If within 24 months before the immigration application, the applicant admits or is convicted of an offence and they have received a non-custodial sentence Cannot apply within this 24 month period

In this case, “imprisonment” is not like “custodial” under criminal law, and a “suspended” sentence is treated as a “non-custodial” sentence.

British Citizenship applications

Immigration Law – British Citizenship applications
Sentence type: Buffer period before sentence spent:
Imprisonment of 4 years or more Never spent
Imprisonment of 1 year to 4 years 15 years
Imprisonment of less than 1 year 10 years
A non-custodial sentence Applications made within 3 years will be refused

As with ILR applications, a “suspended sentence” is treated as a “non-custodial” sentence.

Special mention needs to be made of British Citizenship applications as I have seen many refusals this year because the Home Office considers the applicant not to be of “good character”. The Home Office has many powers at their disposal to investigate this. In the application form, all convictions need to be disclosed, whether or not they are spent.  Persistent minor offending many years ago may result in a refusal if the Home Office considers the applicant has disregarded the law.

The Home Office may wish to see details of the applicant’s previous immigration history as well as their employment history to determine whether they are of “good character”. Previous failed applications for asylum or a lack of employment history have given grounds for the Home Office to investigate and to refuse applications.

How does this relate to deportation law?

Sentences of over 1 year triggers automatic deportation. A deportation order then cancels any existing visa (or ILR) that a person is currently holding. Any right to appeal in the UK against a deportation order depends on whether or not removal will cause the person “serious and irreversible harm”. This is a high threshold to meet. The following are examples of where the Home Office do not consider such harm:

  • A person will be separated from their child/partner for several months while the individual appeals against a human rights decision.
  • A family court case is in progress.

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