Moving on: Applying for settled status if you’re an EU citizen and travelling to Europe

This month we’ve written a further article for Insidetime ‘Through the Gate’ section which highlights the impact of a criminal record when making a settled status application and travelling to the EU with a criminal record after Brexit.

After agreeing a trade deal with the EU, on 1st January 2021 the UK left the single market and customs union. Since then, our helpline has started to receive calls from people with a criminal record worried that leaving the EU will stop them from visiting Europe for a holiday.

The majority of people leaving prison will be on licence, which can make travelling abroad difficult – a standard licence condition is … ‘not to travel outside the UK without obtaining the prior permission of your supervising officer.’ But will a trip to Europe be possible once your licence ends?

The European Commission has previously stated that after Brexit, UK passport holders will need to apply for a European Travel Information and Authorisation System (ETIAS) visa waiver; similar to an American ESTA. This is likely to cost around £6 and will be valid for several years. However it has recently been reported that the introduction of the System is likely to be postponed until late 2022/early 2023.

The ETIAS visa waiver will require applicants to answer basic questions about their past criminal convictions, namely: ‘Have you been convicted of any criminal offence over the previous 10 years and in the case of terrorist offences, over the previous 20 years?’

The answers you give will be checked against the European Criminal Records Information System (ECRIS) and Interpol.

The decision on whether or not to grant you an ETIAS visa waiver will depend on the specifics of your case. If you’ve been convicted of terrorism related offences or sex-trafficking, human trafficking, sexual exploitation of children, murder or rape, you’re likely to be denied entry into Europe.

If your offence falls outside the scope of the question (for example, if you were convicted of theft 12 years ago), then you can answer ‘No’ and your criminal record shouldn’t be a barrier.

If you’re on the Sex Offenders Register

Since 1st January 2021, access to the Schengen Information System (SIS), the information sharing system for security and border management in Europe, has been removed. This means that the police will no longer be able to use SIS to log travel details of anybody travelling to the EU who is on the Sex Offenders Register (SOR).

Although there is no direct replacement for SIS, we’ve been told that the police will continue to use Europol and other relevant data systems if they feel it necessary to share information with the EU. They can also make use of Interpol Notices to monitor the travel of individuals on the SOR across international borders.

Applying for settled status if you’re an EU citizen and have a criminal record

The deadline for applying for settled status is 30th June 2021, but it’s important that you don’t leave it until the last minute to apply. To be granted settled status, you will usually need to have been living in the UK continuously for five years – referred to as ‘continuous residence’.

If you’re currently in prison, you will need at least five years’ continuous residence from the day you are released to be considered for settled status, unless you already had five years’ continuous residence before you were sent to prison. (For example, if you have lived in the UK for less than 5 years, went to prison before 31st December 2020, and are due to be released after 1st January 2021 your application for settled status is likely to be refused. This is because your continuous qualifying residence could not begin until after 31st December 2020).

If you’re considering applying whilst in prison, then you’ll probably need to use a paper form given the difficulties you may have in accessing either your identity documents or the online application form. To request a paper form you should contact the Settlement Resolution Centre (telephone number 0300 123 7379). Once you’ve completed the form, you’ll need to request the relevant identity documents from the prison (we’ve been told that prison governors will make these accessible) before you send it.

As part of the application process, you will be asked for details of your convictions. The Home Office will then check your application against relevant criminal record databases, including the Police National Computer. Your application may be referred to the Immigration Enforcement team for further assessment if:

  • In the last five years you have received a conviction which resulted in a prison sentence;
  • You have ever received a conviction which resulted in a prison sentence of 12 months or more for a single offence;
  • In the last three years, you have received three or more convictions (including non-custodial sentences) unless you have lived in the UK for five years or more;
  • You are currently in prison and your case is awaiting deportation consideration.

If your application is refused you will usually be given the opportunity to appeal to the Home Office against the decision. We would always recommend seeking specialist advice prior to making an appeal and the prison library or resettlement department should be able to provide you with details of organisation that can assist you with this.

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Debbie Sadler