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• » No more rehabilitation for migrant offenders?

No more rehabilitation for migrant offenders?

5 October 2012

The Rehabilitation of Offenders Act 1974 was introduced to allow those with past convictions through the passage of time to have their convictions in effect forgotten, in certain circumstances. Under the Rehabilitation of Offenders Act, after a specific period of time, as stated in the statute, some convictions become what is termed as "spent" and these do not need to be disclosed, except for in limited situations. As of 1 October 2012, for migrants now applying for certain immigration and nationality applications, including entry clearance and further leave to remain applications, the Rehabilitation of Offenders Act no longer applies. The implication of this is that migrants making certain immigration and nationality applications must disclose all previous convictions, even minor offences committed decades ago.

The obligation to disclose does not discriminate against the country in which the sentence was passed. Accordingly, the new change in the law could produce some harsh and indeed unlawful decisions, particularly for those who have left their country of origin due to persecution which may have included trumped up charges and prosecutions.

Additionally, the change in law may produce some confusion, as whilst convictions may be considered spent in other aspects of life, such as for employment purposes, when it comes to immigration applications the convictions must typically be disclosed. Furthermore, where an applicant is identified as having failed to disclose information requested when making their application, that application may be mandatorily refused. If the immigration officials conclude that the applicant has used deception, a ten-year ban against any future applications can also be imposed.

The UKBA is yet to publish guidance on the full implications of the change and what measures may be taken to ensure that unduly unfair decisions are prevented.

As much as ever migrants must carefully consider their obligations to disclose when submitting their applications to the UKBA in order to determine what must and what may be disclosed.