Tier 2 update: criminal record check requirement

Cover image for Tier 2 update: criminal record check requirement

On 6 April 2017 a new requirement to obtain a criminal record certificate will come into force for Tier 2 applicants (and their adult dependents) in the fields of education, health and social care.

Applicants will be required to provide criminal record certificates for any country (excluding the UK) where they have resided continuously or cumulatively for 12 months or more, in the 10 years prior to the application.

When a certificate of sponsorship is issued, Tier 2 applicants should be informed by their sponsor whether they will be required to provide a criminal record certificate.

The UKVI provides information on procedures to be followed for applicants who need to obtain a criminal record certificate in three online documents (divided into countries by letter, A-F, G-P, and Q-Z).

What if the applicant cannot provide the necessary criminal record certificate?

Applicants unable to obtain a certificate must provide a letter which explains what they have done to try and obtain it and confirms why it has not been possible. This letter should be submitted with the other supporting documents when the application is made.

The explanation will then be considered ‘against the situation in the relevant country’ and a decision will be made whether to waive the requirement. If UKVI ‘concludes that it is possible to obtain a certificate but the applicant has failed to do so, the application is likely to be refused’.

In the absence of available checks, employers are expected ‘to obtain as much information as possible in the form of references etc. before deciding whether or not to make an offer of employment’.

Potential issues for applicants and sponsors

Most countries have procedures for criminal record checks. However, some countries appear to require that an applicant be physically in the country when they apply for the certificate (e.g. Angola). For other countries (e.g. China) the process for third-party representatives is not clear.

It remains to be seen whether the UKVI will waive the requirement on the basis that an applicant would have to travel back to a particular country to undertake this process. The guidance released so far appears to suggest that it would not.

The requirement may also be particularly onerous for those who have spent time in multiple countries over the past decade: the 12 month period is counted cumulatively, meaning that separate stays totalling more than 12 months would be enough for UKVI to require production of a criminal record check certificate from the relevant country.

The guidance is not clear on what additional information, if any, employers are expected to obtain in the absence of available checks.

Main image credit: Photo by Victor Cudjoe at Unsplash