How criminal convictions affect settled status for EU citizens?

The EU Settlement Scheme scheme has been set up by the UK government for European residents to apply for “settled status” after Brexit. It is considered necessary because most citizens of European Union countries will lose their existing legal status in this country after it leaves the EU. EU citizens who do not apply for this new status will, eventually, become unlawfully resident.

This statement is not designed to scare anyone. But it is important to realise that you cannot get settled status unless you apply for it, and that there are legal consequences for not applying by the June 2021 deadline.

Overview

All applications for settled status will be checked against criminal records databases, presumably for both the UK and for other EU countries (while the UK remains within the EU and with access to such databases, at least). This is likely to reveal a substantial number of recent and historic offences among the cohort of people applying.

In short, EU citizens may face deportation action for historic offences if they have:

  • Received any sentence of imprisonment at all within the last five years
  • At any time (no matter how historic) received a sentence of 12 months or more for a single offence
  • For those resident for less than five years, if they in the last three years received three or more convictions (including with non-custodial sentences)
  • Previous involvement in serious deception such as sham marriage or assisting unlawful immigration

A final decision on whether to pursue deportation will be subject to a proportionality assessment by the Home Office on the individual facts of the case, presumably taking into account length of residence, family links to the UK and similar.

A final decision on whether to pursue deportation will be subject to a proportionality assessment by the Home Office on the individual facts of the case, presumably taking into account length of residence, family links to the UK and similar.

How many people are affected?

It can be assumed that some EU citizens and family members with criminal records will apply for settled status. However, those who are aware they have a criminal record and are aware that their application will be checked for criminality are less likely to make an application in the first place.

I am not familiar with the data held on the nationality of criminal offenders. Migration Observatory say there is no simple way to estimate numbers but further work could potentially be done on this issue. The Ministry of Justice has previously released figures on EEA nationals sentenced to a sentence of 12 months or more, but most unhelpful it appears to have included UK citizens in the total.

What happens where an applicant fails to disclose criminal offending?

Paragraph EU16(a) of Appendix EU to the Immigration Rules states that an application for settled or pre-settled status can be refused where:

In relation to the application and whether or not to the applicant’s knowledge, false or misleading information, representations or documents have been submitted (including false or misleading information submitted to any person to obtain a document used in support of the application); and the information, representation or documentation is material to the decision whether or not to grant the applicant indefinite leave to remain or limited leave to remain under this Appendix.

Failure to disclose criminal offending would therefore potentially trigger a refusal on the grounds of deception. It is far from clear whether accidental non-disclosure would trigger a refusal but it is likely it would depend on the circumstances. For example, failure to disclose an old driving conviction whether there was no sentence of imprisonment might be accepted as accidental but failure to disclose an assault conviction might not be.

Where a refusal on this basis is contemplated, official policy is to make further inquiries of the applicant and/or relevant third parties or to invite them to an interview.

A proportionality assessment is also to be made prior to a refusal, including consideration of the seriousness of the deception, whether the applicant was aware and the impact on the applicant and family members of a refusal.

This article was provided by Freemovement website. Source:
https://www.freemovement.org.uk/eu-settled-status-criminal-convictions/?fbclid=IwAR3ElChBAw-ep1vwt8PiT58iPNdmg39z2iqB09nuDbJ7RdYMFrysup37Fxs

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