Following the latest roll out of the brand new Digital Journey Authorisation (ETA) regime for non-visa nationals, there has emerged an obvious discrepancy between among the suitability necessities within the ETA guidelines and the customer guidelines. That is related as a result of it might, not less than in concept, result in instances of somebody being granted ETA solely to be refused entry on the border (or for permission to be cancelled after entry).
Criminality
With respect to prison offences that lead to a non-custodial sentence or a custodial sentence of as much as 12 months, the ETA guidelines, present in Appendix Digital Journey Authorisation, say this (my emphasis):
ETA 2.2. An software for an ETA should be refused the place the applicant:
[…]
(b) has been convicted of a prison offence within the UK or abroad except greater than 12 months have handed for the reason that date of conviction.
Nonetheless, the suitability guidelines for guests, present in Half 9 of the immigration guidelines, say this:
9.4.4. An software for entry clearance or permission to enter beneath Appendix V: Customer, or the place an individual is in search of entry on arrival within the UK for a keep for lower than 6 months, should be refused the place the applicant:
(a) has been convicted of a prison offence within the UK or abroad for which they’ve acquired a custodial sentence of lower than 12 months, except greater than 12 months have handed for the reason that finish of the custodial sentence; or
(b) has been convicted of a prison offence within the UK or abroad for which they’ve acquired a non-custodial sentence, or acquired an out-of-court disposal that’s recorded on their prison file, except greater than 12 months have handed for the reason that date of conviction.
So for custodial sentences, the ETA guidelines measure the 12 months as ranging from the date of the conviction, whereas within the customer guidelines, the clock solely begins operating as soon as the custodial sentence has ended.
Case examine
Sunja is convicted of theft on 1 January 2025 and receives a six-month custodial sentence. Her sentence is because of finish on 15 August 2025.
She plans to journey to the UK on 12 February 2026. If she applies for an ETA on 5 January 2026, this will likely be greater than 12 months for the reason that date of the conviction so assuming she meets all the opposite necessities, the ETA would presumably be granted.
Nonetheless, if she travels to the UK on the date she intends, she could possibly be turned away on the border for falling foul of the Half 9 suitability guidelines, as lower than 12 months could have handed for the reason that finish of her sentence.
On this case, it might make sense for Sunja to attend till 16 August 2026 to journey to the UK except the explanation for her journey is pressing and he or she is prepared to take the danger of being turned away on the border.
As a result of ETAs final for 2 years, it’s doable that the discrepancy is intentional relatively than unintentional, to permit somebody to use for the ETA, after which e book the remainder of their journey, earlier than they’re really permitted to enter the UK beneath the Half 9 guidelines. Nonetheless, even if that is so, that is removed from superb as it could result in confusion for travellers and disrupted journey plans, particularly for individuals who don’t learn the immigration guidelines of their entirety earlier than visiting the UK, which I’m reliably knowledgeable is most individuals.
Non-conducive to the general public good
Each the ETA guidelines and the Half 9 have the identical wording of the “non-conducive” rule:
ETA 2.3. An software for an ETA should be refused the place the applicant’s presence within the UK is just not conducive to the general public good due to their conduct, character, associations or different causes (together with convictions which don’t fall inside the criminality grounds).
On this case, the discrepancy lays within the steerage. The “Suitability: non-conducive grounds for refusal or cancellation of entry clearance or permission” steerage that applies throughout the board to most functions states that:
Half 9 of the immigration guidelines doesn’t apply to functions for an ETA. Suitability issues for ETAs should be thought-about beneath Appendix: Digital Journey Authorisation. For additional data see the Digital Journey Authorisation steerage and refer solely to the sections of this steerage which might be specified within the Digital Journey Authorisation steerage.
The ETA steerage has the next examples of what is likely to be thought-about to be non-conducive to the general public good:
- Struggle crimes, terrorism and extremism
- Earlier breach of immigration legislation grounds
- False representations
- Unpaid litigation prices
- Earlier cancellation of an ETA
- Earlier refusal as a customer
As an apart, all the above grounds apart from “warfare crimes” are literally separate grounds of refusal beneath Appendix Digital Journey Authorisation so it’s not clear whether or not they fall beneath “non-conducive to the general public good” or their very own separate classes within the context of an ETA software, although nothing appears to activate this.
Nonetheless, the checklist of things that would result in a refusal on non-conducive grounds beneath Half 9 as lined within the normal steerage additionally contains:
- Admitting the particular person to the UK might unfavourably have an effect on the conduct of public coverage
- Worldwide journey bans
- Immigration offending
- Inciting public dysfunction
- Involvement with criminals and gangs
- Proceeds of crime and corruption
The discrepancy between the 2 means that it might be doable for somebody to be granted an ETA after which refused entry on the border on the premise of things equivalent to earlier immigration offending, which on this context means issues like human trafficking.
Different grounds beneath Half 9
Lastly, there are different grounds of refusal beneath Half 9 which aren’t discovered within the ETA guidelines, together with a compulsory floor of refusal of entry into the UK:
- the place the particular person is a persistent offender who reveals a selected disregard for the legislation (9.4.1(b))
- the place the particular person has dedicated a prison offence or offences which have precipitated severe hurt (9.4.1(c))
- the place the particular person is excluded from the Refugee Conference or can be so excluded in the event that they made a safety declare (9.5.1)
- the place it’s extra seemingly than not that the particular person is, or has been, concerned in a sham marriage or civil partnership (9.6.1)
- the place the decision-maker is happy that the particular person has dedicated a customs breach (9.19.1)
The entire above are grounds for being refused entry into the UK (or for permission to be cancelled, as soon as admitted into the UK) which aren’t discovered within the ETA guidelines.
Case examine
Solomon has three earlier convictions for driving while beneath the affect, the primary two of which resulted in non-custodial sentences, whereas the third, from three years in the past, resulted in a custodial sentence of three months.
Solomon might thus be granted an ETA, as greater than 12 months have handed since his final conviction, whereas being refused entry on the border on the grounds of being a “persistent offender”.
Conclusion
It’s seemingly that the explanation for the seemingly extra relaxed suitability necessities beneath the ETA guidelines is the necessity to course of them in a short time, with most choices coming in inside hours or days, while on the similar time leaving the door open to nonetheless refusing entry to anybody the House Workplace doesn’t want to admit into the nation. Nonetheless, which means that for anybody probably caught by any of the Half 9 grounds for refusal, it’s important to remember {that a} grant of ETA doesn’t assure admission into the nation, and the place related, the necessity to time all the things accordingly.
With many due to Tom Brett Younger at VWV and Matt Wills at Laura Devine Immigration for figuring out these discrepancies of their presentation on the latest ILPA Enterprise Immigration Convention.
