A private members bill has been put to Parliament in July 2019 which would reform the law on disclosing spent convictions and rehabilitation periods under the Rehabilitation of Offenders Act 1974.
If the proposals go ahead, fewer convictions will have to be revealed to employers, educational institutions, insurers and housing providers and in theory there will be more cases in which employers will be unable to refuse employment because of a job applicant’s past convictions.
Once the rehabilitation period has passed, job applicants and employees are not normally required to disclose their convictions to an employer and employers cannot take into account spent convictions when making decisions about an individual’s employment (for example whether or not to recruit them).
Disclosing spent convictions and the Impact on Home Office immigration applications
Should an individual make an application to the Home Office for leave to remain in the UK, such applications are exempt from the Rehabilitation of Offenders Act 1974.
This means that someone applying for leave to remain must declare all convictions on their application, even if they are spent.
Disclosing spent convictions will not necessarily bar them from being granted leave to remain, but failure to disclose may be seen as an attempt to deceive UK Visa and Immigration.
Such an exemption reveals an obvious gap in protection for those who are reliant on work visa sponsorship from their employers as part of their leave to remain application, as their employers will become aware of a spent conviction which the individual would otherwise not be obliged to disclose. Arguably, such individuals are at a distinct disadvantage compared to those who have no need for their employers to be involved in their entitlement to work in the UK.
Remedies for employees
It has long been argued that the Rehabilitation of Offender Act is legislation without any teeth, given the inadequate legal remedy available for those who find themselves on the receiving end of a breach of this law by their employer. It is not clear from the legislation what remedy is intended to be available to an individual who discloses a spent conviction to a prospective employer and is not offered the job as a result. There is no specific employment law remedy available. The only possibility might lie in an action against the employer in the civil courts for breach of statutory duty, but there is no case law authority to support this proposition. The real protection lies where an employee who had already been employed for at least two years is dismissed because the employer subsequently discovers that he or she has a spent conviction. In this case the employee would potentially be able to claim unfair dismissal.
It could also be speculated that the exemption in regards to leave to remain applications, could give rise to a successful claim to indirect race, as arguably this is a provision, criteria or practice which would disproportionately put at a disadvantage those who do not have the benefit of the right to work in the UK (something which is usually intrinsically linked to national origin). Whether such a claim could succeed is likely to be based on the grounds of justification on the part of an employer and given that the exemption is set down by UK legislation it is difficult to see how an employer would be on the receiving end of an unjustifiable indirect race discrimination claim in these circumstances.
The above considerations would mean that, although reform is welcome, whether it goes far enough to assist those who have arguably long paid their debt to society, is doubtful.
Do you need help with an application for UK leave to remain?
DavidsonMorris’ team of UK immigration lawyers specialise in all types of Home Office applications, including leave to remain. We have particular expertise in matters involving more complex considerations such as spent convictions. For advice with your UK application, speak to our experts.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
