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Visa Control – It’s Criminal!

With a view to targeting foreign criminals the Government have introduced yet another hurdle for prospective non-European Economic Area migrants to secure initial entry clearance. 

This time the focus is on investors and entrepreneurs seeking to come to the UK under Tier 1 of the Points Based System (PBS).

From 1 September 2015 the application of any migrant (and any adult dependent) under Tier 1 must be accompanied by an overseas criminal record certificate in respect of each and every country that the migrant has resided in for a period of 12 months or more over the last preceding 10 years since the age of 18.

An original certificate will be required for each country (excluding the UK) which, if not in English, must also be translated in accordance with Home Office requirements.  The certificate must also have been produced no more than 6 months prior to the visa application.

The Home Office has provided current information on how to obtain certificates from various countries worldwide:

www.gov.uk/government/publications/criminal-records-checks-for-overseas-applicants

Where the migrant is unable to provide a certificate, say in respect of a country that does not produce such documents, then the migrant must instead produce a letter fully detailing his or her attempts to obtain a certificate and explaining why this has not been possible.

Failure to provide any required certificate(s), or an acceptable explanation for not doing so, will result in the application being automatically refused.

It is fully anticipated that this process will be rolled out to Tier 2 migrants under the PBS (highly skilled employees/workers) in 2016 /17, although Immigration Minister James Brokenshire has confirmed that there is no intention to extend it to short term visas on the basis of proportionality.

Whilst it is of course laudable that the Home Office should seek to prevent undesirable (ex)criminals from securing leave to enter the UK, there will nevertheless be a significant logistical  impact on those perfectly respectable individuals who are seeking to locate to the UK to live and / or work, and which may in itself prove a disincentive to applying.

As well as the additional cost of securing the certificate(s) and possible translation, different countries have widely varying processing times to provide the information.  Logistical planning will therefore need to be taken to ensure that all certificates are correctly obtained, or a written reason provided to explain why not, and that all certificates are current at the date of application.

These considerations also need to be weighed in tandem with further timing issues such as an inconclusive tuberculosis test which may take up to 3 months to resolve and, when extended to Tier 2 General migrants, the validity of any prior resident labour market test which becomes “stale” after 6 months.

Tier 1 migrants and future Tier 2 migrants and their sponsors will therefore need to plan applications even more carefully, and factor in the time scales needed to satisfy the ever increasing number of Home Office conditions required to secure visa entry into the UK.

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further