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New Visa Rules In UK May Mean Trouble For Many Musicians
The rollout of the UK’s Electronic Travel Authorisation (ETA) scheme for non-visa nationals means that more creative artists seeking entry to the UK as a visitor or under the Creative Worker visa concession will have their criminal record actively reviewed by the Home Office before entry. In some cases where an ETA can’t be approved, an entry clearance application will need to be approved before coming to the UK.
If you are a creative artist, or an organisation needing creative artists to come to the UK, you should be aware of the potential impact of the UK’s expansion of the ETA scheme on non-visa nationals, particularly those with criminal convictions. This includes:
- Visitors to the UK for creative purposes, e.g. models, actors, singers and other artists attending castings, meetings and promotional activities, or those completing permitted paid engagements or performances for permit free festivals; and
- Sponsored workers entering the UK using the Creative Worker visa concession e.g. stage and screen actors, musicians, models, film/TV crew and their entourages.
What questions are asked about criminal convictions in ETA applications?
An ETA is applied for using a simple online or app-based form. It must be completed in one sitting, so any relevant information should be to hand before commencing. This includes a declaration of all prior criminal convictions, spent or unspent. Without completing the declaration, the form can’t be submitted.
The initial questions to be answered when applying for an ETA are:
-Have you been convicted of a crime in the last 12 months?
-Have you ever had a prison sentence of more than 12 months?
(Note that parking fines, speeding tickets and convictions for activities that are legal in the UK, e.g. trade union membership or a same-sex relationship do not need to be declared)
If the answer is yes to either question, further information will be required as follows:
-Nature, date and country of conviction
-Type of sentence, (custodial/suspended)
-Length of sentence
How does the Home Office consider criminal convictions in ETA applications?
The Home Office’s assessment of an ETA application will include consideration of answers to the above. However, provisions are strict and the Immigration Rules stipulate that an ETA application must be refused in all cases where the applicant has one of the following relevant convictions:
-A conviction for a criminal offence in the UK or overseas within the last 12 months; or
-A conviction of a criminal offence in the UK or overseas at any time in the past, for which they have received a custodial sentence of 12 months or more.
An ETA may also be refused (or cancelled) if the Home Office considers an applicant’s presence in the UK is not conducive to the public good because of their conduct, character, associations or other reasons. This provision is wide and can include convictions that don’t fall within the scope of the mandatory refusal reasons above, especially where there are repeat offences. It can also extend to situations where an individual is notorious for poor behaviour or expressing extremist views. This will be assessed through answers to the questions on the ETA online form and other information the Home Office holds.
The Home Office aims to process most ETA applications within 3 working days. A traveller declaring a prior criminal conviction will be a trigger for additional checks and therefore longer ETA application processing times. In almost all cases, declaring a relevant criminal conviction will also result in the ETA application being refused.
A further point to note is that, at least in the introductory phase of the ETA scheme rollout, travellers are permitted to board their UK-bound transport while a submitted ETA application remains pending. This is extremely risky and not recommended for individuals with prior criminal convictions. This is because the traveller could be denied entry at the UK border if the ETA application is refused mid-journey.
Delayed processing, refusal or cancellation of an ETA could put a major spanner in the works for planned engagements and contracted performances, such as those for theatre rehearsals/performances, concerts/festivals, fashion shows, film/TV shoots, and more.
Being ineligible for an ETA or having one refused does not necessarily mean that entry to the UK is impossible. Instead, it could mean a full entry clearance application must be made, including detailed information regarding prior criminal convictions.
What happens if a relevant conviction is declared?
The Home Office’s ETA assessment process is predominantly automated, however self-declared relevant criminal convictions will be reviewed by a Home Office decision maker. Nevertheless, unless an applicant mistakenly declares a conviction that is not within the scope of the refusal grounds, the likelihood of the ETA being approved is low. This is because of the mandatory nature of the refusal grounds and the possibility of a full entry clearance application being made.
What happens if a relevant criminal conviction is not declared?
If any failure to declare a criminal conviction is discovered mid-assessment, the ETA application will be refused. If the Home Office becomes aware of a conviction after an ETA application has already been approved, the ETA will be promptly cancelled.
It is also possible that a future UK immigration application may be refused if the Home Office considers that the non-disclosure of a relevant criminal conviction in an ETA application amounts to deception.
Recommendations for affected individuals and organisations
It is important to remember that each case will be assessed on its individual facts. Individuals and organisations needing creative artists to come to the UK as a visitor or under the Creative Worker visa concession may wish to seek legal advice on ETA eligibility and whether it is appropriate to make an entry clearance application:
In instances where it appears an ETA will be refused due to a relevant criminal conviction;
- Where a visitor or Creative Worker’s convictions or broader conduct may fall within the scope of the non-conducive refusal ground; and/or
-Where a visitor or Creative Worker has previously had a visitor application or ETA refused.
It is ideal to allow as much time as possible before the planned UK engagement dates. This is because the target processing time for visitor and Creative Worker entry clearance applications is 3 weeks. Additional time must be allowed for preparing the application and attending an in-person biometrics appointment, where required.
For an overview of what an ETA is, and who it applies to, see here:
by Andrew Osborne, Supinder Singh Sian, Stephen O'Flaherty, and Naomi Hanrahan-Soar
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