Unlock is an independent advocacy charity, providing advice and support to people in the UK facing obstacles and stigma because of their criminal record. Unlock has published detailed information about the EU Settlement Scheme for applicants with a criminal record, as well as details of organisations that can provide specialist advice. In this article for Europe Street News, Unlock Co-director Christopher Stacey gives an overview of the process. This is for information purposes and does not constitute any form of legal advice.
The EU Settlement Scheme protects the rights citizens from the European Union, Norway, Iceland, Liechtenstein and Switzerland, and their family members, currently have in the UK.
As part of the process of applying for settled or pre-settled status, there are questions about criminal records and checks are carried out by the Home Office.
It is difficult to give clear information on how the Home Office treats applications from people with criminal records. However, we’ve put some information together based on what we know so far.
Applying for settled status
Having a criminal record should not put people off applying for settled status.
It is important to apply as soon as possible, even if the deadline is 30 June 2021.
For applicants who have lived in the UK for five years or more and have no unspent convictions, it is unlikely that the criminal record will be a barrier.
Applicants who have unspent convictions, or have a criminal record and have lived in the UK for less than five years, should get specialist advice.
Will criminal records affect settled status applications?
The vast majority of applicants with a criminal record should find that their criminal record is not a barrier to settled or pre-settled status.
People who have not applied for settled or pre-settled status by 30 June 2021 will not be able to continue living and working in the UK, so an application must be made to continue living in the UK.
Although the Home Office will accept late applications where there is a good reason for missing the deadline, it is important to try to not be in this difficult position and apply as early as possible.
In some situations, where applicants have unspent convictions or serious offences, it may be necessary to write detailed legal representations in support of the application so that it is not refused or a deportation order is not issued (see Unlock detailed guidance for more information).
Taking specialist advice before making the application is strongly recommend in these circumstances.
What questions are asked about criminal records?
Applicants who are over 18 will be asked the following question as part of the settled status application:
Have you ever been:
- Convicted of a criminal offence
- Arrested or charged with an offence that you’re on trial for or awaiting trial?
This includes offences in the UK or any other country.
Children (those under the age of 18) will not be asked this question. However, the Home Office says that all applicants over the age of 10 will be checked against relevant criminal records databases, including the Police National Computer (PNC). This means that in some cases it might be necessary to declare offences even if applicants are under 18 years old.
In case of doubts, applicants should seek specialist advice before making the application.
How to answer the question about criminal records?
Home Office guidance states:
“You do not need to declare any of the following:
- convictions that do not need to be disclosed (“spent convictions”)
- warnings (“cautions”)
- alternatives to prosecution, for example speeding fines.
When is a conviction ‘spent’?
Under the Rehabilitation of Offenders Act 1974, convictions become ‘spent’ in England & Wales after a period of time which is determined by the sentence received.
On this basis, applicants who received a conviction in England and Wales and are confident that it is now spent do not need to declare it, so long as they have not been arrested and awaiting an outcome of a police investigation, or on trial or awaiting trial.
Although they do not need to declare spent convictions, for more serious and recent convictions, even if they are now spent, applicants may want to get specialist advice and ask for the application not to be referred for a deportation decision.
Applicants who have received convictions in England and Wales that are not yet spent under the Rehabilitation of Offenders Act 1974 need to answer “Yes” to the first question about criminal records. They should get specialist advice for support with the application.
Unlock has published a one-page summary of guidance which can be downloaded as a PDF. Organisations providing advice to individuals can use this as a way of raising awareness amongst those who need to apply and might be concerned about their criminal record.
Unlock continues to work on settled status, to help secure the rights of EU nationals in the UK by ensuring that a criminal record does not unfairly exclude them.
Christopher Stacey, Unlock Co-director