RFL10 - When can I refuse on the grounds of criminality?
This is internal guidance for use by entry clearance staff on the handling of refusals for visa applications made outside the United Kingdom (UK). It is a live document under constant review and is for information only.
RFL10.1 When can I refuse under Criminality?
The new Immigration Rules provide for ten key areas in which a person with criminal history may fall for refusal, whether the offences were committed in the
These are:
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A conviction which resulted in a sentence of 4 years or more imprisonment - Paragraph 320 (2)(b) and S-EC.1.4.(a) Appendix FM provides for a mandatory refusal where a person has been convicted of an offence and sentenced to at least 4 years' in imprisonment, at any point in the past.
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A conviction which resulted in a sentence of at least twelve months' (but less than 4 years) imprisonment - Paragraph 320 (2)(c) and S-EC.1.4.(b) Appendix FM provides for a mandatory refusal where a person has been convicted of an offence and sentenced to between 12 months and 4 years' imprisonment, unless a period of 10 years has passed since the end of the sentence.
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A conviction which resulted in a sentence of less than twelve months' imprisonment - Paragraph 320 (2)(d) and S-EC1.4(c) Appendix FM provides for a mandatory refusal of entry clearance where a person has been convicted of an offence and sentenced to less than 12 months' imprisonment, unless a period of 5 years has passed since the end of the sentence.
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A non-custodial sentence - Paragraph 320 (18A) and S-EC2.5(a) Appendix FM provides for a discretionary refusal of entry clearance where has been convicted or admitted an offence for which they have received a non-custodial sentence or other out of court disposal that is recorded on their criminal record within the preceding 12 months.
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Being the subject of a deportation order - Paragraph 320 (2)(a) and S-EC1.3 Appendix FM provides for a mandatory refusal of entry clearance.
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Being personally excluded by the Secretary of State - Paragraph 320 (6) and S-EC1.2 Appendix FM provides for a mandatory refusal of entry clearance.
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Committing an offence which caused serious harm - Paragraph 320(18B) and S-EC2.5(b) Appendix FM provides for a refusal of entry clearance.
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Being a persistent offender who shows a particular disregard for the law - Paragraph 320(18B) and S-EC2.5(b) Appendix FM provides for a refusal of entry clearance.
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On account of the person's character, conduct or associations - Paragraph 320 (19) and S-EC1.5 Appendix FM provides for a refusal of entry clearance.
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Deception (where this involves deliberately concealing convictions) - paragraph 320 7A - please see RFL04.
When determining if a refusal under the Criminality sections of the Immigration Rules is appropriate, the ECO must also take into consideration any human rights grounds and ensure the refusal is both appropriate and reasonable. Should the ECO have an application which would fall for refusal but there are exceptional, compelling or compassionate circumstances, please refer to RFL03 for further information on how to deal with these cases.
RFL10.2 When do I refuse on the basis of custodial sentences?
A person who has been convicted of an offence and sentenced to a period of imprisonment must have their application for entry clearance considered under 320 (2)(b) to (d) and S-EC.1.4. (a) to (c) of Appendix FM.
- If a person has been sentenced to a period of four years or more imprisonment, the ECO must refuse the application indefinitely.
- If a person has been sentenced to a period of between 12 months and less than 4 years imprisonment, the ECO must refuse the application until 10 years has passed since the end of the sentence.
- If a person has been sentenced to a period of less than 12 months imprisonment, the ECO must refuse the application until 5 years has passed since the end of the sentence.
The end of the sentence should be taken to mean the entire sentence imposed, not just the time a person spent in prison. For example, a person who is sentenced to 2 years' imprisonment on 01/01/2013 but only served one year in prison, will not normally be granted entry clearance until 01/01/2025 (10 years added to the end of the 2 year sentence imposed).
RFL10.3 When can I refuse on the basis of non-custodial sentences?
Paragraph 320 (18A) and S-EC.2.5.(a) in Appendix FM of the Immigration Rules provides for a discretionary refusal of entry clearance where a person has been convicted of or admitted an offence for which they have received a non-custodial sentence or other out of court disposal that is recorded on their criminal record within the preceding 12 months of submitting their application. Examples of non-custodial sentences may include fines, Cautions, Warnings and Reprimands or suspended sentences. For more information please see the General grounds for refusing guidance page on this website.
Please note that a caution is not a conviction. It is an out of court disposal which is recorded on an individual's criminal record. Since it is not a conviction the applicant should not be refused under paragraph 320(7A) if they fail to declare it on the application form.
RFL10.4 When can I refuse applications based on serious harm and/or persistent offenders?
Paragraph 320 (18B) and S-EC.2.5.(b) of Appendix FM provides for a discretionary refusal of entry clearance where an applicant has committed either an offence which has caused serious harm or is deemed to be a persistent offender.
Serious harm
When assessing applications ECOs must consider both the consequences and the impact of the criminality that the applicant has engaged in. Serious harm can include, causing death or serious injuries to an individual or group of individuals.
Persistent Offending
When assessing applications ECOs must consider, on a case-by-case basis, the nature, extent, seriousness and impact of the person's offending. Factors to consider may include (but are not limited to):
- The number of offences committed
- The seriousness of those offences
- Any escalation in the seriousness of the offence
- The timescale over which they were committed
For more information please see the General grounds for refusing guidance page on this website.
RFL10.5 When do I refer Criminality cases to ECCCAT?
Any potential high profile criminal conviction refusals, for example, where media interest is likely, must always be referred to ECCCAT at as early stage as possible. This includes any potential refusals involving a member of HM Forces.
For all IDENT1 and non-IDENT1 potential criminal conviction refusals: refer to the ECM. If the ECM requires further guidance, then refer to ECCCAT.
Emails to ECCCAT should be classified as necessary and marked 'POSSIBLE CRIMINAL CONVICTION REFUSAL UNDER CRIMINALITY RULES'
RFL10.6 What if the offence occurred outside the UK?
Paragraph 6 of the Immigration Rules provides that a conviction means 'conviction for a criminal offence in the UK or any other country'. Offences do not need to have an identical named provision or carry similar penalties in the UK provided there is a comparable offence - for example, homicide and murder. Therefore where a check reveals that a person has a conviction outside of the UK, it should be treated as if the offence occurred in the UK. Similarly, where sentences received outside of the UK do not have an identical or similar provision, the ECO must find a domestic sentence which is the nearest equivalent. Offences which do not constitute a criminal offence in the UK - for example, homosexuality or proselytising, should be discounted.
Details of the possible sentence which a particular offence in England and Wales could attract, including possible sentences for some traffic offences, can be found on the Crown Prosecution Service website.
Details of the possible sentences for all traffic offences can be found on the DirectGov website.
If an ECO cannot adequately determine the possible sentence using the above websites, or where the applicant was found guilty under Scottish law, the ECO should contact ECCCAT for assistance.
HM Forces
Offences against military service are set out in Armed Forces Act 2006 and fall into two categories:
- Criminal conduct offences: imposed under service law and should be considered in the same was as one imposed by a civilian court.
- Non criminal conduct (disciplinary) offences: should not be considered in the same way but maybe taken into account in the wider considerations of character and conduct.
Further details on how to deal with HM Forces personnel and the different types of offences can be found on the General grounds for refusing guidance page on this website.
RFL10.7 Refusal wordings and Appeals
For suggested refusal wordings please see the Criminality section in Entry Clearance Toolkit found on FCONet.
Paragraph 320 (1) to (6) of the Immigration Rules do not attract a full right of appeal. Paragraph 320 (7) to (22) of the Immigration Rules attract appeal rights of the category in which the applicant is applying.
Any applications refused under Family Migration Route - S.EC1.4 (a) to (c) and S.EC2.5 (a) and (b) attract a full right of appeal.
RFL10.8 Summary Table
| Paragraph Number | Ground | Refusal |
| 320(2)(b) or S-EC1.4(a) |
Sentence: 4 years' or more imprisonment | Mandatory*: Indefinitely *excluding exceptional cases |
|
320(2)(c) |
Sentence: 12 months' to under 4 years' imprisonment | Mandatory*: 10 years *excluding exceptional case |
| 320(2)(d) or S-EC1.4(c) |
Sentence: less than 12 months' imprisonment |
Mandatory*: 5 years *excluding exceptional case |
| 320(7B) | Conditional caution prevents re-entry | Mandatory* 5 years from the date the person left the UK *excluding exceptional cases |
| 320(18A)or S-EC2.5(a) |
Non-custodial sentences Serious harm |
Discretionary* Non-custodial sentences recorded on their criminal record within the preceding twelve months *please also see persistent offenders |
| 320(18B) or S-EC2.5(b) |
Serious harm |
ECO must take into consideration the following factors:
|
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Persistent offender |
ECO must take into consideration the following factors:
| |
| 320 (19) S.EC1.5 |
Character, Conduct or Associations |
Discretionary |