New criminality threshold

he does not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders act 1974

does not fall for refusal under the general grounds for refusal.

322 wrote:(1C) where the person is seeking indefinite leave to enter or remain:

(i)they have been convicted of an offence for which they have been sentenced to imprisonment for at least 4 years; or

(ii) they have been convicted of an offence for which they have been sentenced to imprisonment for at least 12 months but less than 4 years, unless a period of 15 years has passed since the end of the sentence; or

(iii) they have been convicted of an offence for which they have been sentenced to imprisonment for less than 12 months, unless a period of 7 years has passed since the end of the sentence; or

(iv) they have, within the 24 months preceding the date of the application, 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.”

Explanatory Memorandum

Changes to Part 9: Grounds for Refusal

7.21 The rules on how we use the powers to refuse or cancel entry clearance and permission on suitability grounds will be replaced with revised and simplified rules. The new Part 9 applies to all routes, except Appendix FM (Family Route), Appendix AF (Armed Forces), Appendix EU (EU Settlement Scheme), Appendix EU (Family Permit), Part 11 (Asylum) (except paragraph 352ZH, 352ZP, 352J and 352U), Appendix S2 Healthcare Visitor and Appendix Service Providers from Switzerland.

7.22 There are exceptions to Part 9 that will apply to applications for, and leave granted under, legacy ECAA arrangements with Turkey and transitional arrangements introduced from 1 January 2021. The changes ensure that, in respect of conduct committed after 31 December 2020, the UK conduct thresholds will apply to cancellation of leave and to new applications for extension of leave. Conduct committed before that date will continue to be assessed under ECAA legacy thresholds. For dependent children joining a family member with leave under Appendix ECAA Extension of Stay from 1 January 2021, all conduct will be assessed in accordance with the revised suitability rules.

7.23 There are changes to the criminality thresholds to replace the existing different thresholds with a new single sentence-based threshold of 12 months applying to offences committed in the UK or overseas. This will also align decision-making relating to criminality with the current deportation threshold of 12 months for UK offences, creating consistency across the immigration system and making it easier for migrants to understand exactly what impact their convictions will have on their immigration status.

7.24 It will be mandatory to refuse an applicant who is seeking entry clearance or permission to enter the UK for the first time as a visitor or for entry for less than 6 months if the relevant criminality grounds apply. These changes reflect the policy intention for decision-making to be tougher at the border in relation to visitors and those entering the UK for the first time.

7.25 Currently, any application for limited or indefinite leave to remain must be refused if the Secretary of State has previously made a decision to exclude that person under Article 1F of the Refugee Convention, to exclude that person from Humanitarian Protection under paragraph 339D of these Rules or made a decision that they are within scope of Article 33(2) of the Refugee Convention. The application must also be refused if notwithstanding there has been no such decision, their actions result in such a refusal decision, based on exclusion under Article 1F, paragraph 339D, or the application of Article 33(2) on the basis that there are reasonable grounds for regarding them as a danger to the security of the UK, if the person were to make a protection claim. The rules will allow applications for entry clearance, permission to enter and permission to stay to be refused on a similar basis as well as existing permission to be cancelled. These grounds will be discretionary. The changes ensure a consistent approach in how we deal with individuals we believe have committed serious crimes and ensure that a refugee who has been removed from the UK under Article 33(2) of the Refugee Convention cannot return to the UK.
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9.1.1. Part 9 does not apply to the following:

• (a) Appendix FM, except paragraphs 9.2.2, 9.3.2, 9.4.5, 9.9.2, 9.15.1, 9.15.2, 9.15.3, 9.16.2, 9.19.2, 9.20.1, 9.23.1 and 9.24.1. apply, and paragraph 9.7.3 applies to permission to stay; and paragraph 9.8.2 (a) and (c). applies where the application is for entry clearance; and
• (b) an application on grounds of private life under paragraphs 276ADE to 276DH, except paragraph 9.13.1; and
• (c) Appendix Armed Forces, except paragraphs 9.2.2, 9.3.2, 9.4.5, 9.7.3, 9.8.1. to 9.8.8, 9.9.2, 9.15.1. to 9.15.3, 9.16.2, 9.19.2, 9.20.1, 9.23.1. and 9.24.1. apply; and paragraph 9.10.2. applies where the application is under Part 9, 9A or 10 of Appendix Armed Forces; and
• (d) Appendix EU; and
• (e) Appendix EU (Family Permit); and
• (f) Paragraph 159I in Part 5, except paragraphs 9.2.1(c), 9.2.2, 9.3.1, 9.3.2, 9.4.1(b), 9.4.1(c), 9.4.2, 9.4.5, 9.7.1, 9.7.2, 9.7.3, 9.9.1, 9.9.2. 9.16.2, 9.20.1, 9.23.1, 9.24.1; and
• (g) Part 11 (Asylum), except Part 9 does apply to paragraphs 352ZH to 352ZS, and 352I to 352X and 352A to 352FJ; and
• (h) applications for entry clearance or permission to stay granted by virtue of the ECAA Association Agreement, except that in relation to permission granted under the Agreement paragraphs 9.2.2, 9.3.2, 9.4.2, 9.4.5, 9.6.2, 9.7.3 and 9.21.2 apply where the criminal offence or adverse conduct occurred after 11pm on 31 December 2020; and
• (i) applications for permission to stay under Appendix ECAA Extension of Stay, except paragraphs 9.2.1, 9.3.1, 9.4.1, 9.4.3, 9.6.1, 9.7.1, 9.7.2, 9.11.1, 9.12.1 and 9.21.1, and in relation to such permission paragraphs 9.2.2, 9.3.2, 9.4.2, 9.4.5, 9.6.2, 9.7.3 and 9.21.2 apply where the criminal offence or adverse conduct occurred after 11pm on 31 December 2020; and
• (j) Appendix S2 Healthcare Visitor; and
• (k) Appendix Service Providers from Switzerland.
• (l) Appendix Ukraine Scheme, except paragraphs 9.2.1 to 9.7.3, 9.10.1 to 9.10.2, 9.14.1 to 9.20.2, 9.23.1 and 9.24.1 and
• (m) Appendix Settlement Protection; and
• (n) Appendix Settlement Family Life, except paragraphs 9.6.1. and 9.6.2; and
• (o) Appendix Temporary Permission to Stay for Victims of Human Trafficking or Slavery except paragraphs 9.2.2, 9.3.2, 9.4.2, 9.4.5, 9.5.2, 9.7.3, 9.18.1, 9.20.1, 9.20.2, 9.23.1 and 9.24.1; and
• (p) Appendix Electronic Travel Authorisation; and
• (q) Appendix Adult Dependent Relative, except paragraphs 9.2.2, 9.3.2, 9.4.5, 9.9.2, 9.15.1, 9.15.2, 9.15.3, 9.16.2, 9.19.2, 9.20.1, 9.23.1 and 9.24.1. apply, and paragraph 9.7.3 applies to permission to stay; and paragraph 9.8.2 (a) and (c). applies where the application is for entry clearance.

9.4.1. An application for entry clearance permission to enter or permission to stay must be refused where the applicant:

• (a) 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
• (b) is a persistent offender who shows a particular disregard for the law; or
• (c) has committed a criminal offence, or offences, which caused serious harm.

9.4.2. Entry clearance or permission held by a person must be cancelled where the person:

• (a) 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
• (b) is a persistent offender who shows a particular disregard for the law; or
• (c) has committed a criminal offence, or offences, which caused serious harm.

9.4.3. An application for entry clearance, permission to enter or permission to stay may be refused (where paragraph 9.4.2. and 9.4.4. do not apply) where the applicant:

• (a) 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
• (b) 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.

9.4.4. An application for entry clearance or permission to enter under Appendix V: Visitor, or where a person is seeking entry on arrival in the UK for a stay for less than 6 months, must be refused where the applicant:

• (a) 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
• (b) 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.

9.4.5. Entry clearance or permission held by a person may be cancelled (where paragraph 9.4.2. does not apply) where the person:

• (a) 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
• (b) 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.