My Partner Has Convictions in the UK Can We Apply for a Spouse Visa?
If you and your spouse or partner are planning to apply for a spouse visa to enable you both to live together in the UK, you may be concerned that a criminal conviction may prevent them from being granted a visa by the Home Office. As with most aspects of immigration policy, the question of whether a criminal offence will lead to refusal cannot be answered with a simple yes or no. While a prior history of criminality is one of the main for refusal of an application for a spouse visa, this does not mean your partner’s application will definitely be rejected. In this article, we will outline the guidance followed by case officers considering such cases and explain how criminal convictions will be assessed in order to make a decision on your spouse visa application.
Assessing if the refusal is ‘conducive to the public good’
Appendix FM outlines the suitability criteria for entry for anyone wishing to enter the UK to join their partner for the purposes of family life. The first section (S-EC.1.1) states, “The applicant will be refused entry clearance on grounds of suitability if any of paragraphs S-EC.1.2. to 1.9. apply”. Sections S-EC.1.2 to 1.9 are not all reserved for criminality, rather it covers range factors that would make the applicant unsuitable, including refusal to attend an interview, provide information, or undergo a medical examination.
Core to the factors which must be weighed up by the Home Office case officer is whether refusing the applicant would be ‘conducive to the public good’; S-EC.1.2. states, “The Secretary of State has personally directed that the exclusion of the applicant from the UK is conducive to the public good”. Appendix FM lays out in more detail what is meant by this ‘conducive to the public good’ in the following sections:
- S-EC.1.4. The exclusion of the applicant from the UK is conducive to the public good because they have:
- been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years; or
- been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 12 months but less than 4 years unless a period of 10 years has passed since the end of the sentence; or
- been convicted of an offence for which they have been sentenced to a period of imprisonment of fewer than 12 months unless a period of 5 years has passed since the end of the sentence.
- S-EC.1.5. The exclusion of the applicant from the UK is conducive to the public good because, for example, the applicant’s conduct (including convictions which do not fall within paragraph S-EC.1.4.), character, associations, or other reasons, make it undesirable to grant them entry clearance.
Based solely on duration, if your partner’s imprisonment was for less than four years, as long as the end of the sentence was far enough in the past, they may be allowed entry. Imprisonment of four years or more, however, will likely lead to refusal of a spouse visa.
On the one hand, while section S-EC.1.4 provides clarity on the duration and/or age of sentences, S-EC.1.5. makes matters much less clear by adding discretionary criteria to the assessment of what is deemed ‘conducive to the public good’. The challenge with such cases is that the Home Office may still consider that refusal is in the interest of the public good if the offence caused serious harm or the person is a “persistent offender who shows a particular disregard for the law (SEC.2.5), or even if they have “character, associations, or other reasons, make it undesirable to grant them entry clearance”. Even if your partner was not imprisoned, or they settled a criminal matter out of court, they may still fall foul of the ‘conducive to the public good’ test. As such, it is essential that if your partner has prior criminal convictions of any type that they seek the guidance of immigration Solicitors before submitting an application for a spouse visa. An immigration lawyers will review your partner’s case and history to determine if there any factors which may lead to a refusal, and if there are, recommend how these can best be handled.
Other criminal factors which may lead to refusal of a spouse visa
Under section S-EC.1.8 of appendix FM, another ground for refusal is whether the “the applicant left or was removed from the UK as a condition of a caution issued in accordance with section 22 of the Criminal Justice Act 2003 less than 5 years prior to the date on which the application is decided”. In addition, there are other grounds for refusal which may not appear on face value to be related to criminality, these include:
- S-EC.3.1. The applicant may be refused on grounds of suitability if the applicant has failed to pay litigation costs awarded to the Home Office.
- S-EC.3.2: one or more relevant NHS bodies have notified the Secretary of State that the applicant has failed to pay charges in accordance with the relevant NHS regulations on charges to overseas visitors and the outstanding charges have a total value of at least £500.
It must be emphasised that even if you think your partner may fall foul of these restrictions, there are often ways of resolving such matters. For example, by making an offer to repay amounts that are due, and including documentary evidence of a mutual agreement to do so, then it may be possible to have a spouse visa granted.
While the Home Office guidance provides case officers with considerable scope to refuse an application for a spouse visa in relation to criminality, this does not mean those with a criminal conviction will be refused. Regardless of your partner’s specific situation, do not give up hope. The key to a successful application is to proactively provide information which will deal with any potential interpretation of the rules used as grounds for refusal. By doing so, your partner will have the best chance of being able to remain with you in the UK for the remainder of your lives.