By Emilia Cieslak – Legal Associate

16 Oct 2024

In This Article

1. Impact of Criminal Convictions on Appendix FM Applications
2. General Rules on Criminality in UK Immigration and Appendix FM
3. Criminality Under Appendix FM – How It Differs from General Rules
4. Mandatory Refusals for Criminal Convictions in Family Visa Applications
5. Home Office Discretion in Appendix FM Criminality Cases
6. Impact of Past Convictions on UK Family Visa Applications
7. Contact Our Immigration Barristers
8. Frequently Asked Questions
9. Glossary
10. Additional Resources

1. Impact of Criminal Convictions on Appendix FM Applications 

If you have a past criminal conviction you may find it significantly more difficult to make a successful entry clearance application for most UK visas. This situation is often very distressing, especially where the application is for a partner route or another family route that would allow you to live with your family members in the UK. This article explains how the rules regarding criminality in Appendix FM, the part of the Immigration Rules that governs partner and child routes, differ from the general rules on criminality.  You can find out more in our article Grounds for Refusal of a UK Immigration Application Explained.

2. General Rules on Criminality in UK Immigration and Appendix FM

The general rules on criminality appear in Part 9: grounds for refusal in the Immigration Rules. These rules apply to most immigration routes, such as the Skilled Worker route, the Business Mobility routes and the Visitor visa. 

The rules in Part 9 state that an application for entry clearance must be refused where the applicant:

• Has 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
• Is a persistent offender who shows a particular disregard for the law; or
• Has committed a criminal offence, or offences, which caused serious harm. 

The rules go on to say that an application for entry clearance may be refused where the applicant:

• Has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of less than 12 months; or 
• Has been convicted of a criminal offence in the UK or overseas for which they have received a non-custodial sentence, or received an out-of-court disposal that is recorded on their criminal record. 

If applying for a visitor visa, entry clearance must be refused where the applicant:

• Has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of less than 12 months, unless more than 12 months have passed since the end of the custodial sentence; or
• Has been convicted of a criminal offence in the UK or overseas for which they have received a non-custodial sentence, or received an out-of-court disposal that is recorded on their criminal record, unless more than 12 months have passed since the date of conviction. 

3. Criminality Under Appendix FM – How It Differs from General Rules

The rules on criminality in Appendix FM are somewhat less harsh than the general rules in Part 9. The rules state that an application for entry clearance will be refused where the applicant has:

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

Please note that the Home Office also has a discretion to refuse an application where the applicant’s conduct, character, associations, or other reasons, make it undesirable to grant them entry clearance, even if the applicant does not fall into any of the categories set out above. 

4. Mandatory Refusals for Criminal Convictions in Family Visa Applications

The wording of the rules, which state that the application “will be refused”, suggests that a refusal is mandatory in these circumstances. However, the Home Office has retained a residual discretion buried within Home Office caseworker guidance. 

The Home Office document ‘Family life (as a partner or parent) and exceptional circumstances’ states that when considering criminality, Home Office decision-makers should refer to the guidance document ‘Criminality guidance in ECHR cases’. While this guidance document mainly covers deportation cases, the legal principles are relevant to entry clearance applications that engage human rights grounds, such as partner route applications. The guidance states:

‘Where an applicant will normally be refused if they fail to meet these suitability requirements, or may be refused if they fail these suitability requirements, you should look at the nature of the suitability issues being considered in the context of the application as a whole, and decide whether those issues are sufficiently serious to refuse on the basis of suitability (bearing in mind that anything which comes within these criteria should normally or may be refused) or whether there are compelling reasons to decide that the applicant meet the suitability criteria. This will be a case-specific consideration.’

5. Home Office Discretion in Appendix FM Cases Involving Criminal Offences

The Home Office decision-maker will carry out a proportionality assessment. During the assessment, the decision-maker will consider the following issues:

• Would refusing the applicant’s entry clearance be an interference by a public authority with the exercise of your right to respect for your family life?
• If so, will the interference have consequences of such gravity as potentially to engage the operation of article 8 ECHR (the right to private and family life)?
• If so, is such interference in accordance with the law?
• If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
• If so, is such interference proportionate to the legitimate public end sought to be achieved?

Case law from the Supreme Court has said that Home Office decision-makers should ascertain the facts and set out the “pros” and “cons” of granting an application in a “balance sheet” approach. The Home Office decision-maker should then set out reasoned conclusions as to whether the countervailing factors outweigh the importance attached to the public interest in the exclusion of foreign offenders. 

Some of the factors that may be considered are whether the criminal offence involved serious harm (for example physical harm or property damage), whether the applicant is a persistent offender, the impact on your family from your separation, and your family member’s ties to the UK.

Applications involving these kinds of arguments are complex and it is recommended that you seek legal advice before deciding on your next steps. 

6. Impact of Past Criminal Convictions on UK Family Visa Applications

There may be questions such as what if the criminal offence was a long time ago, or when I was a child? Or if it has been taken off my record?

The online application form will prompt you to disclose whether you have any:

• Criminal convictions.
• Penalties for driving offences, such as disqualification for speeding or driving with no motor insurance.
• Arrests or charges for which you are currently on, or awaiting trial.
• Cautions, warnings, reprimands or other out-of-court penalties.
• Civil court judgments against you, for example for non-payment of debt, bankruptcy proceedings, or anti-social behaviour.
• Civil penalties issued under UK immigration law.

Please note that the online form also asks about your involvement in war crimes, genocide, and terrorist activity, which is beyond the scope of this article. You should aim to be open and honest about any past offences. There is no time limit for the convictions and no special provisions for offences committed while the applicant is a child.  

There are some jurisdictions where offences may be expunged from your record due to the passage of time or upon application. In the jurisdiction of England and Wales, the Rehabilitation of Offenders Act 1974 provides that once a certain period of time has lapsed a conviction becomes “spent” and so the individual is treated as rehabilitated in respect of that offence and does not have to declare it for most purposes, such as applying for jobs or insurance.

However, immigration and nationality decisions are exempt from the 1974 Act and so both spent and unspent convictions must be declared in all applications and will be considered by the Home Office when deciding whether to grant the application. Therefore, the applicant must declare the conviction on all immigration applications, even after it has been expunged from the records in their home country.

The rules in Appendix FM state that an application will normally be refused if there has been a failure to disclose material facts in relation to the application. 

For expert and assistance with your UK visa application following a criminal conviction, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.