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Criminal record checks in visa applications

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Another change to the Immigration Rules has been released in the press ahead of any official announcement. You can make your own headlines by randomly shuffling the phrases “foreign criminals”, “immigration crackdown”, and “visa ban”.

The most recent announcement relates to paragraph 320(2A) of the Immigration Rules, which imposes a refusal if criminal record certificates going back 10 years are “required” but not provided. This paragraph was drafted back in February, and came into effect in April. Now the Home Office has said which applicants will be the first of those to be “required” to produce criminal record checks, and how those checks will function.

The first cohort of applicants who will be “required” to produce a “criminal record certificate” will be Tier 1 (Investor) and Tier 1 (Entrepreneur) visa applicants (and adult dependants) from 1 September 2015. This adds to the burden on Entrepreneur applicants who are already increasingly refused under the subjective “genuine entrepreneur” rules (where government functionaries assess the viability of applicants' business plans).

The requirement is then due to be rolled out to other visa categories, presumably including family applicants. Applicants will have to provide a certificate from a “relevant authority” for any country where they have been resident for 12 months or more in the past 10 years.

The updated Policy Guidance for Entrepreneurs explains the process on pages 6-7.

You can also read about how to obtain criminal record checks from other countries here

It is worth noting the widely varying application procedures, costs and timescales, and certificate validity details. Some certificates (such as Georgia's) have a very short shelf-life, and the Policy Guidance itself requires that the certificate is no more than 6 months old. There is an opportunity to be exempted from the requirement if it is “not reasonably practicable” to obtain a certificate, but an applicant must write a letter explaining the efforts they have made to obtain one, and the entry clearance officer will then decide if this is enough.

Also worth noticing is that of all the horror stories about “foreign criminals” that accompanied the press reports on this announcement, none that I have seen would have been prevented by this policy.

For more information please contact Kitty Falls on 023 8022 1344 or k.falls@duttongregory.co.uk.