CRIMINALITY REQUIREMENT

This guidance is based on proposed changes to the

Immigration Rules from 6 April 2011 subject to Parliamentary
approval.
1. Introduction

This draft guidance is to advise caseworkers of important changes to the criminality

requirement for applicants seeking settlement (indefinite leave to remain (ILR) in
the UK. These changes come into force on 6 April 2011.

From this date, in addition to fulfilling any existing requirements relevant to their
route, an applicant will also need to demonstrate that they do not have any unspent
convictions (as provided for by the Rehabilitation of Offenders Act 1974) when their
application is considered. This will be an additional requirement to paragraph 322
of the Immigration Rules which sets out the general grounds for refusal. The new
rules will appear in a consolidated version of the Immigration Rules on our website
from 6 April 2011 (at various paragraphs in Part 5, Part 6, Part 6A, Part 7 and Part
8 of the Rules).

2. Overview of new requirements

If the applicant is applying for settlement on or after 6 April 2011, they must not
have a conviction which is not considered ‘spent’ via the Rehabilitation of Offenders
Act 1974 (‘the Act’). Where they do, their application must be refused.

In calculating whether a person has an unspent conviction, caseworkers should be

aware of the following key points:

• A conviction becomes 'spent' after a specified rehabilitation period. This time

depends on the sentence imposed and the age of the offender at the time of
conviction.

• Section 5(2) of the Act sets out the rehabilitation periods and the following
publication http://www.nacro.org.uk/data/files/nacro-2007021302-65.pdf also
provides detail of what those periods are.

• The sentence in question can be passed, or an order made, by the courts of

any country, including court martial for persons subject to military discipline.
Therefore, convictions outside of the UK will be treated as if that conviction
occurred in the UK.

• The rehabilitation period runs from the date of conviction, not the date of
completion of the sentence.

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• The rehabilitation period is based on the length of the sentence, not the time (if
any) actually spent in prison.

• Suspended sentences have the same rehabilitation period as sentences

served.

• When sentences are imposed concurrently, the rehabilitation period is the

longest applicable; when sentences are imposed consecutively, the
rehabilitation period is that applicable to the total sentence (e.g. a sentence of 6
months imprisonment with another 6 months consecutive is regarded in the
same way as one 12 month sentence).

• Receiving a Fixed Penalty Notice (FPN) is not a criminal conviction and should
therefore be disregarded. The exceptions to this will be where either there are
criminal proceedings for failure to pay and the individual has an unspent
conviction as a result of that or the individual has multiple FPNs, particularly
over a short period of time, and should be considered in line with the general
requirements of character, conduct and associations within paragraph 322(5) of
the Rules.

• Likewise, receiving a caution is not a criminal conviction and, despite

conditional cautions carrying a short rehabilitation period, they are to be
disregarded for the purposes of this draft guidance. Again however, a person
who has multiple cautions, particularly over a short period of time, should be
considered in line with the general requirements of character, conduct and
associations within paragraph 322(5) of the Rules.

• Although there are differences between the Criminal Justice systems in

England & Wales and Scotland & Northern Ireland (notably the availability of
the “not proven” verdict in Scotland, which is not a conviction), the provisions of
the Rehabilitation of Offenders Act apply throughout the UK.

3. Deportation

Cases should be checked to determine whether or not they wish to pursue

deportation.

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4. Exceptions

Those who submitted their application before 6 April 2011 will be considered under
the pre-existing arrangements (i.e. via the ‘character, conduct and associations’
provision in the general grounds for refusal).

Applicants who are seeking ILR via the ‘protection route’ (refugees and those with
humanitarian protection (HP)) who were initially granted 5 years leave will be
considered in line with the existing arrangements around ‘character, conduct and
associations’ in the general grounds for refusal.

This instruction does not apply to those applying under the terms of the HSMP ILR
Judicial Review policy, whose applications should be considered under the terms of
rule 332(5).

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