Criminality, Serious Harm & Immigration Decisions

• Published date: 26 November 2021
• Subject Matter: Immigration, Criminal Law, General Immigration, Work Visas, Crime
• Law Firm: Richmond Chambers Immigration Barristers
• Author: Ms Georgina Griggs and Catherine Taroni

When making an application for entry clearance or leave to remain (permission to stay) in the UK, migrants must meet various suitability requirements and must show that their application does not fall for refusal or cancellation under the general grounds. The general grounds for refusal are set out in Part 9 of the Immigration Rules. They apply to all applications, though there are some limits in their application to certain routes, such as those under Appendix FM to the Immigration Rules.

This article will address how applications made by applicants with previous offending will be treated in respect of the general grounds for refusal. It will also address the grounds upon which the Home Office can cancel permission to stay for migrants who are already in the UK.

General Grounds for Criminality Prior to 1 December 2020

The general grounds for refusal were changed on 1 December 2020, as part of the government's major overhaul of the Immigration Rules, ready for the post-Brexit economy. The changes make the Rules more stringent. An overview of the changes can be found in our Knowledge Centre, here.

Due to the new approach, migrants who have criminal convictions, and whose applications were previously granted notwithstanding the general grounds for refusal, could (in theory) see future applications refused or their leave cancelled under the new grounds. We would advise those who may be in this situation to seek legal advice.

Current Grounds for Refusal in Place Since 1 December 2020

Criminality Grounds: Mandatory Grounds for Refusal

There are a number of grounds for refusing applications or cancelling leave on the basis of a criminal conviction. Migrants will need to consider the circumstances of their conviction, their sentence, and any other relevant factors to determine which grounds may apply in their case.

Paragraphs 9.4.1. (refusal) and 9.4.2. (cancellation) are mandatory grounds for refusal / cancellation. Migrants fall under these grounds where:

1. They have been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of 12 months or more; or
2. They are a persistent offender who shows a particular disregard for the law; or
3. They have committed a criminal offence, or offences, which caused serious harm.

Where a migrant falls under one of the above grounds, there is no specified period of time which must have passed before that they no longer apply. Therefore, if a migrant falls under either paragraph...