Carrying out pre-employment checks for migrant workers can not only be crucial to ensuring that you are hiring someone trustworthy and reliable, but in ensuring that your chosen candidate is likely to be successful in their application for a work visa.
Below we examine the rules relating to overseas criminal record checks, from who can apply to how to do this.
Why is it important to apply for overseas criminal record checks?
There are statutory requirements for employers to carry out criminality checks on successful candidates in certain job sectors. These typically fall within the health, education and social care sectors, although checks can also be required in various other sectors.
Further, under Appendix Skilled Worker of the UK’s Immigration Rules, if a Skilled Worker visa applicant is applying for entry clearance for a job role that falls within any of the listed occupation codes, they must provide a criminal record certificate or the equivalent thereof. The rules go on to provide a long list of occupations and corresponding codes from the health, education and social care sectors that require this check.
The certificate must be obtained from the relevant authority in any country in which the applicant has lived for at least 12 months, whether on a continuous basis or in total throughout the 10 year period prior to the date of application, and while aged 18 or over.
A certificate must also be provided by any adult dependent partner of the visa applicant, whether they apply with them or separately. However, this certificate requirement will not need to be met if the applicant is making an application to extend their stay in the UK.
Where applicable, if the applicant fails to provide a certificate or any satisfactory explanation as to why they have not provided one, UK Visas and Immigration (UKVI) will refuse their application for entry clearance. This is because the provision of an overseas criminal record certificate is a mandatory requirement for specified job roles in the UK.
Without meeting this requirement, this means that your chosen candidate will not be able to enter the UK legally, nor undertake the work in question. It is therefore better for them, or you on their behalf, to obtain a certificate at the earliest possible opportunity. It may also be necessary to obtain a certified translation of any certificate to be submitted in support of their visa application, where many countries will not issue a certificate in English.
Who can apply for an overseas criminal record check?
All migrants applying under the Skilled Worker or Health & Care Worker route who want to undertake a specified job role within either the health, education or social care sectors must provide a criminal record certificate to both their employer and in support of their visa application. This requirement applies to anyone looking to take employment under one of a number of standard occupation codes from within these sectors. Appendix Skilled Worker covers a wide range of job roles from doctors, dentists and midwives, to teachers, social workers and probation officers.
When a certificate of sponsorship is issued by a UK employer, the visa applicant will need to be told by their sponsor at this stage, if this has not already been explained, whether they will be required to provide a criminal record certificate.
The worker applying for a role within one of the occupations listed under Appendix Skilled Worker will usually be required to obtain their own overseas criminal record check although, in some cases, a third party, including a prospective employer, may be able to obtain the check on their behalf. However, as the employer, you would need written consent to do so. In other cases, applications are limited to the individual worker for whom disclosure is sought, where they will not be permitted to authorise a third party to apply for them.
What is the process to apply for an overseas criminal record check?
The application process for obtaining an overseas criminal record check to provide to UK employers, or to meet the mandatory requirement for a visa, varies from country to country. As an employer, by having an understanding of each country’s process for obtaining a criminal record check, this will enable you to plan and resource accordingly, and to manage expectations of both the prospective worker and colleagues relying on a potential new-starter.
In some countries, when making an application for a criminal record check, an application can only be made locally by the individual concerned and cannot be made by a prospective employer or other third party. These applications may need to be made, for example, at a local police station or post office. The applicant may even need to provide their fingerprints. For other countries, applications can be made by the prospective employer on behalf of their chosen candidate through the relevant UK embassy or High Commission.
The manner in which an application should be submitted can also vary from country to country, from applying in person to applying by post, email, fax or online, with varying degrees of complexity. The application process can involve a formal written and signed application, providing detailed information, including, for example, the applicant’s parents names. In most cases, the applicant will also need to provide some form of documentary evidence, at the very least a copy of a valid passport, but in some cases also a letter from their employer or even the relevant authorities, with an explanation or permission for the disclosure request.
Where can information be obtained for overseas criminal record checks?
Details of how to obtain an overseas criminal record check from the relevant authorities abroad can be found on the .gov website. This includes information on how to apply and relevant contact details.
If the country concerned is not listed, further information on the criminal records processes overseas can be obtained from the relevant embassy or High Commission. Contact details for either embassies and High Commissions in the UK can be found on the Foreign and Commonwealth Office (FCO) website. You can also telephone the FCO Response Centre on 020 7008 1500.
What are the turnaround times for overseas criminal record checks?
The turnaround times for overseas criminal record checks will very much depend on the country responsible for suppling the certificate and whether the application is made in-country or from the UK. In some cases, a check can either be carried out instantly, on the same day or in as little as 24 hours, whereas in other cases it could take weeks or even months. However, the average turnaround time appears to be between 10-15 working days.
In some countries, a fast track option may be available, so it is always important to check in advance the turnaround times for the country in question, and if any faster option can be taken advantage of where time is of the essence.
What is the cost for an overseas criminal record check?
The cost of an overseas criminal record check will again depend on the applicable country. In some cases there will be no cost all, or a negligible cost, whilst in others there will be a relatively sizeable fee. Information on the cost of obtaining an overseas criminal record check can be obtained from the relevant foreign embassy or High Commission in the UK.
Applications may also need to be made in respect of several countries where an applicant has lived in various different places in the 10 years prior to the date of application.
What happens if the applicant cannot obtain a certificate?
It may not always be possible to obtain a criminal record certificate from countries that either refuse to provide certificates to anyone other than their own citizens or where there is no functioning criminal record regime. For visa purposes, if the applicant cannot obtain a certificate from the relevant country, they must provide an explanation with their application which details their attempts to obtain a certificate and why this has not been possible.
Although the requirement to obtain a criminal record certificate is a mandatory requirement, specific provision is made under Appendix Skilled Worker for the possibility that an applicant may be prevented from obtaining a certificate under the criminal record regime of the country in question. As such, the requirement can be waived if the applicant can provide a satisfactory explanation as to why it has not been reasonably practicable for them to obtain a certificate from any or all of the relevant authorities.
UKVI will consider the explanation provided by the applicant against the regime in the relevant country and then decide whether or not to waive the requirement. If a decision is made that it is possible for that individual to obtain a certificate, but they have failed to do so, UKVI is likely to refuse their application for a Skilled Worker visa.
What can an employer do if a candidate cannot obtain a certificate?
In the absence of available checks, employers are expected to obtain as much information as possible, for example, in the form of references, before deciding whether to make a confirmed offer of employment. As part of their recruitment process, an employer may also request a criminal record check from the Disclosure and Barring Service (DBS).
In a limited number of cases, overseas criminal records are stored on the Police National Computer (PNC) where these would be revealed as part of a DBS check. However, as the DBS cannot access criminal records held overseas, a criminal record check may not provide a complete picture of an individual’s criminality. Further, the DBS is not involved in the processing of applications made to overseas authorities, and therefore will not be responsible for the contents or the length of time taken for information to be returned.
What are the challenges when it comes to overseas criminal record checks?
In some cases, a job applicant may be able to obtain a criminal record certificate, or the equivalent thereof, within a matter of hours. In others, this process may take weeks or months, and even result in a refusal to provide any information whatsoever. Where time is of the essence in hiring a new employee from overseas, this is likely to significantly delay their start date. Any delay could even reduce the chances of that individual being able to undertake their new job role at all, thereby potentially discriminating against them because of where they are from or where they have lived during the last 10 years.
For example, in Belarus, only individuals and not prospective employers can apply. An application will need to be made in person at the police station responsible for the area in which they live, with a turnaround time of around 2 months. In contrast, in Denmark, an applicant can apply directly to the Danish police for disclosure with an instant turnaround. They can also provide written consent to a third party, including a prospective employer, to apply on their behalf, with a turnaround by post of around just one week.
It is also important to bear in mind that any anticipated time frame for obtaining overseas criminal record checks could be significantly extended if an applicant has lived in several different countries for over 12 months in the 10 years before the date of application.
Unfortunately, without a globalised system for criminal record checks, both UK sponsors and migrant workers must do their best to work within the limits of the different overseas regimes and to submit their application(s) for a criminal record certificate as soon as possible.
DavidsonMorris’ immigration lawyers work with UK employers on all aspects of overseas recruitment and onboarding processes. Working closely with our specialists in employment law, we offer a comprehensive pre-employment solution encompassing criminal checks and right to work checks, as well as drafting documentation relating to employment offers and terms, which may include making conditional offers of employment. For advice on a specific issue, speak to our experts today.
Overseas criminal record check FAQs
Is a criminal record international?
The information included in a criminal record will vary between countries. In the UK, the Disclosure and Barring Service (DBS) cannot access overseas criminal records, so a DBS check may not reveal a complete picture of a person’s criminality.
How do I get a US background check from the UK?
An application can be made by post or online through an FBI-approved channeler to the Criminal Justice Information Services Division of the Federal Bureau of Investigation. The application must be made by the individual and not a third party.
Last updated: 6 April 2021