This post relates to Criminal Record Certificate Tier 1 Investor and Entrepreneur applicants and refusal on general grounds under Paragraph 320 (2A) of the Immigration Rules.
Tier 1 Applicants to Provide a Criminal Record Certificate
From 1 September 2015, Tier 1 (Entrepreneur) and Tier 1 (Investor) entry clearance applicants and their adult dependant(s) (over 18 years of age) are required to provide an overseas criminal record certificate for any country they have resided in continuously for 12 months or more, in the last 10 years before their application.
Refusal under Paragraph 320 (2A) of Immigration Rules
Any applicant who fails to provide the required certificate or certificates will fall for refusal under paragraph 320 (2A) unless they are either aged 17 or under or it is not reasonably practicable for the applicant to obtain such evidence from the relevant authorities.
Applicants 18 or Above To Provide An Original Certificate
Applicants must provide:
- the original certificate, for each country (excluding the UK) where they have resided continuously for 12 months or more in the last 10 years, since aged 18 years old, issued by the overseas authority;
- if the certificate is not in English, a translated copy of a certificate, in line with the requirements.
UK Immigration Authorities to Retain the Original Certificate
Certificates will only be considered valid if have been issued within 6 months of the visa application or within the expressed validity period of the document, whichever is the shorter. The original certificates are retained by the UK Immigration Authorities in line with retention periods, in most cases at least 2 years. Therefore, certificates are not returned to the applicants.
Offences Outline in the Criminal Record Certificate
Any offences outlined in the certificate will be subject to the existing criminality thresholds within the General Grounds for Refusal (320 2, 18A, 18B).
Where there is a discrepancy between the information provided by the applicant in the visa application form, information on the certificate, criminal record checks and/or open source (such as media reporting) an explanation is requested from the applicant through an interview. There may be good reasons for the discrepancy, for example, certificates may not detail ‘spent’ convictions according to a particular country’s rehabilitation legislation, however where information about offences is available, either from the application form or other sources, it must be considered as part of usual decision making.
Consideration of ‘Reasonably Practicable’ and Exceptions
Where applicants are unable to obtain certificates they must:
- provide a letter which details their attempts to obtain a certificate and confirms why this has not been possible;
- submit this letter with the other supporting documents when they apply.
Explanation against the situation in any of those countries must be considered and the Home Office guidance needs to be checked so as to establish if the country has a process for issuing certificates, there is more information on this in Home Office Overseas Criminal Record Certificate guidance.
If an applicant has previously resided in a country for 12 months or more but is no longer resident, be aware that many agents operate a service to obtain certificates on behalf of their clients.
If it is concluded that it is possible for the applicant to obtain a certificate and they have failed to do so, the application is quite certain to be refused under paragraph 320 (2A) of the Immigration Rules. Such a decision may also be reviewed by an Entry Clearance Manager (ECM).
Exceptions: Grant of Waiver
Where an ECO is satisfied that it is not reasonably practicable to expect an applicant to provide one or more certificates and intend to issue entry clearance, an Operations Manager or above may review the decision to waive the certificate requirement.
The information that the applicant provides must be checked about the countries they have resided in for over 10 years to make sure they have provided the correct certificates.
If the applicant has provided some, but not all, of the required certificates, and this is the only issue preventing the application from being granted, then an applicant is advised through an email that they have 7 working days to provide the remaining certificates and that their application will be refused if they fail to do so.
Certificates must be genuine documents issued by the official authorities. Checks can be undertaken to make sure documents are genuine and correctly issued to the applicant or adult dependant.
False or Fraudulently Obtained Document
A document verification report (DVR) or document examination report (DER) will be required to ascertain to a balance of probabilities that a false document has been obtained, or a genuine document has been altered and used for the application. There is more information on this in Document examination (DER) and verification reports (DVR).
If an applicant provides a false or fraudulently obtained document, independently verified through a DVR or DER, then the application must be refused under both 320 (7A) for providing false documents and 320 (2A) for failing to provide overseas criminal record certificate as required.
If a certificate and/or information provided within the VAF outlines that an applicant has been arrested and charged (or any equivalent) but awaiting prosecution or a court hearing, their application is likely to be put on hold pending the outcome of proceedings.