10 Sep How can a criminal record impact your EUSS application?

It is important to note that following Brexit, new changes were introduced to the Immigration Rules on 1 January 2021, governing how criminal convictions will impact EU nationals residing in the UK. As part of an EUSS application for settled or pre-settled status, the Home office/UKVI will assess the applicant’s criminal history and the latter may impact the outcome of the application depending on when the conviction or conduct took place.

If the conviction or conduct by an EU national and their family occurred before 31 December 2020

If the conviction or conduct was committed before 31 December 2020, the criteria in Regulation 27 of the Immigration (EEA) Regulations 2016 will apply. This will be on ‘conducive grounds’ and will assess as to whether deportation or expulsion is ‘conducive to the public good.’

A decision made on this basis should be:

• Based on the personal conduct of the relevant person
• The conduct must present a genuine and sufficiently serious threat affecting one of the fundamental interests of society, and does not have to be imminent
• General prevention of such conduct, or matters which are not personal to the particular person or case, does not justify the decision
• Previous criminal convictions alone do not justify the decision
• The decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, but must be grounds specific to the EU national.
• Proportionate

In addition, the UKVI will also take into consideration the person’s age, family, and financial situation as well as their state of health. Their ties to the UK in terms of social/cultural integration should also be considered as well as their period of residence and ties to their country of origin.

If the relevant EU national had a right to permanent residence, a decision can only be considered on the grounds of public policy and security.

If an applicant has resided in the UK for a continuous period of 10 years or they are under the age of 18, the decision can only be made on imperative grounds of public policy or security.

Offences committed abroad or in the UK after 1 January 2021

On 22 October 2020 changes to the Immigration Rules were made to address how non-UK nationals (including EU nationals and their family members) would be affected if they commit an offence after 1 January 2021.

“Under changes laid in Parliament today, from 1st January 2021, EU citizens will be subject to the same firmer and fairer criminality rules that apply to non-EU citizens. 

This means that:

• Foreign criminals sentenced to at least a year in jail will be banned from entering the UK,

• Foreign criminals sentenced to less than a year in jail could still be banned, with the Home Office considering on a case-by-case basis their full criminal history and whether they have ties to the UK such as family members,

• Foreign criminals who haven’t received a prison sentence could also be banned from entering the UK, for example:

• if the offending is persistent or causes serious harm (such as sexual offences),

• if it is decided that their presence in UK is not conducive to the public good, or
• if they have a criminal conviction of any kind in the past 12 months and are seeking to enter the UK for the first time.

All offences will be considered whether committed in the UK or overseas.

These changes do not apply to EU citizens protected by the Withdrawal Agreement, such as those with status under the EU Settlement Scheme. However, if an individual who is protected by the Withdrawal Agreement commits crimes from 1 January 2021, in the UK or overseas, their status could be revoked, for example if that crime resulted in a prison sentence of at least a year.”

It should also be noted that a migrant’s status may also be revoked if they committed a criminal offence in the UK or abroad, after 1 January 2021.

So which offences do I need to declare?

When making an application under the EUSS, Appendix EU requires all:

‘Applicants (aged 18 or over) are required to provide information about previous criminal convictions in the UK and overseas and are only required to declare past criminal convictions that appear in their criminal record in accordance with the law of the State of conviction at the time of the application” 

In conclusion, criminal offences committed in the UK and overseas need to be declared. However, there is no requirement to disclose those which have been spent, cautions or fixed penalty notices such as for speeding.