Where an individual's presence in the UK is non-conducive to the public good, Part 9 of the Immigration Rules sets out that this is a mandatory ground for refusal or cancellation under the suitability requirements. This applies to applications for entry clearance, permission to enter and permission to stay.
Presence in the UK being non-conducive to the public good can also constitute a reason to deprive an individual of their British citizenship. This is set out in further detail in our earlier post here. However, the deprivation of citizenship is provided for separately under section 40(4) of the British Nationality Act 1981.
Meaning of presence is non-conducive to the public good
In assessing whether an individual's presence is the UK is non-conducive to the public good, several factors may be considered when assessing suitability. These include character, conduct or associations if they pose a threat to society in the UK. This ground applies to conduct which occurred in the UK and overseas.
The burden and standard of proof required under Part 9 of the Immigration Rules
The Home Office has the burden of proving that presence in the UK is not conducive to the public good. The standard of proof that needs to be met is the balance of probabilities. Therefore, in order to refuse an application or cancel leave on non-conducive grounds, the Home Office must have sufficiently reliable information to conclude that it is more likely than not that an individual's presence in the UK is not conducive to the public good.
The Home Office Guidance on non-conducive to the public good
The Guidance lists factors which should be considered when deciding whether a person's presence in the UK is non-conducive to the public good. These are:
- the nature and seriousness of the behaviour
- the level of difficulty we could experience in the UK as a result of admitting the person with that behaviour
- the frequency of the behaviour
- any other relevant circumstances pertaining to that individual
As such, vague generalisations which are unsubstantiated and allegations do not meet the threshold for grounds of refusal of applications due to suitability.
Crucially, an individual can still be refused entry to the UK on this suitability ground under Part 9 of the Immigration Rules without a criminal conviction.
The Guidance also provides a non-exhaustive list of examples when a person's presence may be non-conducive to the public good.
Threat to national security:
Refusals or cancellations of entry clearance or permission due to national security concerns will typically involve terrorist activities. These include acts or threats which aim to advance a religious, political or ideological idea, whilst influencing or intimidating.
Extremism and unacceptable behaviour:
In line with the government's Counter-Extremism Strategy, extremism is another ground of refusal or cancellation under Part 9 of the Immigration Rules. Extremist and unacceptable behaviour is understood as encompassing a wide variety of activities.
The Guidance sets out that such views may:
- incite, justify or glorify terrorist violence in furtherance of particular beliefs
- seek to provoke others to terrorist acts
- foment other serious criminal activity or seek to provoke others to serious criminal acts
- foster hatred which might lead to inter-community violence in the UK
If subsequently an individual has not re-engaged in the behaviour or retracted views, this must be considered when considering making any refusal decision concerning suitability.
Refusal due to association:
If an individual may be, or has been, associated with persons involved in terrorism, extremism or war crimes, this may also constitute a ground for refusal.
Family associations are given special consideration when finding a person's presence non conducive to the public good. For example, family ties to war criminals are not taken into consideration for refusal decisions concerning minors.
Refusal as admission could unfavourably affect foreign policy conduct:
In order to make a refusal decision under Part 9 of the Immigration Rules on this ground, the Home Office delegates to the Foreign, Commonwealth and Development Office to seek specific guidance.
War crimes, crimes against humanity and genocide
Schedule 8 of the International Criminal Court Act 2001 fully defines war crimes, crimes against humanity and genocide.
Non-conducive to public good decision making relies heavily on the evidence and information available to establish a link between the individual and such activities. It also closely considers the sources of such information.
The Guidance sets out that in assessing the evidence available, the following must be considered:
- an admission or allegation of involvement in such crimes
- an admission or allegation of involvement in groups known to have committed such crimes
- the length of time since the individual's involvement in the war crime and any evidence that the individual has rehabilitated
- if not directly involved did the person support the commission of those crimes, or support groups whose main purpose or mode of operation consists of the committing of such crimes, even if that support did not make any direct contribution to the groups' war crimes, crimes against humanity or genocide
International travel bans:
Section 8B of the Immigration Act 1971 sets out that an individual subject to a travel ban imposed by the UN Security Council, the EU, or the UK under Sanctions and Anti-Money Laundering Act 2018, must be refused entry clearance or entry to the UK and any permission held must also be cancelled if the individual is in the UK.
Examples of immigration offending, as set out in the Guidance, include human trafficking and facilitation. If there is reliable evidence for such offending, the application must be refused or cancelled under Part 9 of the Immigration Rules.
Inciting public disorder:
This applies if a person intends to engage or has engaged in behaviour resulting, or likely to result in, public disorder. Such behaviour does not need to be politically motivated but may involve rioting or affray, for example.
Involvement with criminals and gangs:
The evidence is used to ascertain the degree of proximity between the individual and a criminal, not just the mere fact that they know one another. The known impact of their activities, the conduct of the individual and the criminal are also taken into consideration.
Proceeds of crime:
Whilst an individual does not need to have action taken under Proceeds of Crime Act 2002, refusal or cancellation may still occur, especially if the corruption is considered high-level, for example, if the individual received a state sanction.
Specific provisions at the border and for leave under EUSS
The power to cancel permission at the border is set out under paragraph 2A of Schedule 2 of the Immigration Act 1971.
The Guidance contains specific provisions for individuals granted leave under the EU Settlement Scheme or acquired by virtue of arriving with an EUSS Family Permit. The powers granted under Paragraph A3.1(b) of Annex 3 to Appendix EU to the Immigration Rules enable cancellation of these types of leave also.