Criminal record checks are mandatory for certain types of roles in the UK. Some employers may also opt to use criminal record checks for overseas applicants or those who have spent time abroad so as to mitigate recruitment risks and ensure a safe working environment.
The following guide for UK employers looks at the process of obtaining an overseas criminal record check, from what this is and when this is needed, to who is responsible for applying for a check and the challenges that can present themselves when doing this.
What is an overseas criminal record check?
An overseas criminal record check is a check undertaken via the relevant foreign authorities or UK Embassy for a migrant worker, or anyone else who has lived abroad, to ensure that they have not been convicted or cautioned of a criminal offence in another country.
UK employers can ask to check the criminal record of any new recruit, no matter what role they have applied for. In many cases, this will be either a basic or standard check of any criminality in England and Wales using the Disclosure and Barring Service (DBS). However, employers may also want an overseas criminal record check to provide a complete picture of possible criminality, where the DBS cannot access criminal records in other countries.
When is an overseas criminal record check needed?
In addition to right to work checks that must be undertaken for all new recruits, regardless of nationality, you may also need to undertake an overseas criminal record check as part of your pre-employment procedures for any foreign national that you are looking to hire.
The circumstances in which an overseas criminal record check will be needed will depend on a number of factors, including the sector that a particular job role falls into, and whether or not you are sponsoring a foreign national to work for your business in the UK.
In the UK’s health and education sectors, there are statutory requirements for employers to carry out criminality checks on any prospective employees who have spent time abroad, with specific safeguards in place where a migrant’s job involves working closely with children and vulnerable people. However, in other employment sectors in the UK, it may still be regarded as best practice to check the background of any successful candidate prior to taking them on. It is also not uncommon for employers to want to check the background of all new recruits, either to ensure that they are reliable and trustworthy or, if they are being sponsored to work for the employer, that they are likely to be approved for a visa.
When applying for any type of work visa to undertake paid employment in the UK, a foreign national must be assessed as suitable by UK Visas and Immigration (UKVI), where UKVI is the division of the Home Office responsible for the UK’s visa system. First and foremost, this means that the visa applicant must not fall for refusal on grounds of any prior convictions, offending or criminal behaviour. However, in addition to satisfying the suitability criteria, the applicant may also need to obtain a criminal record certificate, or the overseas equivalent, under the various route-specific requirements for certain visas.
A certificate confirming an individual’s criminal record is usually issued by the police or by an appropriate law enforcement agency in the country in question. A certificate will include information about a person’s criminal record, including any past offences and information relating to recent arrests pending further action, such as prosecution. Alternatively, the certificate will confirm that the individual does not have a criminal record.
Which visas require an overseas criminal record certificate?
If a prospective employee is applying for entry clearance under any of the following visa routes, they must provide a criminal record certificate from the relevant authority in any country (excluding the UK) where they have lived for 12 months or more (whether continuously or in total) in the 10 years prior to applying for a visa while aged 18 or over:
- on the Skilled Worker route when applying to work in the education, health or social care sectors, where the rules list multiple occupation codes subject to this requirement, from managers and directors in health services to home carers and care workers
- as the dependent partner (aged over 18 years old) of the main applicant or principal visa-holder on the Skilled Worker route, either applying with the main applicant or separately
- as the dependent partner (aged over 18 years old) of a Tier 1 (Entrepreneur) or Tier 1 (Investor) already in the UK. Even though these routes are closed to new applicants, the dependent partners of existing visa-holders can still apply to join them in the UK, with no restrictions on undertaking work except as a professional sportsperson or sports coach.
For anyone being sponsored as a Skilled Worker, the requirement for Skilled Worker entry clearance applicants to produce a criminal record certificate is determined by the standard occupational classification (SOC) code attributed to their employment role in the UK. The online Home Office guidance on the application process for criminal records checks overseas provides a full list of the SOC codes subject to the requirement to obtain a criminal record certificate (last updated 23 October 2023). If you are sponsoring a migrant worker to undertake a job role in the UK on the Skilled Worker route, you will need to inform them of any requirement to obtain a criminal record certificate when you assign them their certificate of sponsorship and prior to them applying for their work visa.
Visa applicants in all other immigration routes in the UK are not currently required to provide criminal record certificates. Additionally, those already in the UK who are seeking to extend their stay in one of the above categories are also not presently included.
However, where applicable, if an applicant fails to provide a criminal record certificate or any satisfactory explanation as to why not, UKVI will refuse their application for entry clearance. In these circumstances, your chosen candidate will not be able to enter the UK legally, nor undertake the job role on offer to them. It is therefore best, either 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 applies for an overseas criminal record check?
In circumstances where a prospective employee is required to obtain a criminal record certificate in support of their application to UKVI for entry clearance to come to the UK, they will usually be required to obtain their own overseas criminal record check although, with their written consent, you may be able to a obtain the check on their behalf.
In other cases, applications may be 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. For example, where someone has recently lived in the United States, third party representatives or prospective UK employers cannot apply. In these cases, only the individual can apply, including US citizens and permanent residents, as well as non-citizens and non-residents, provided they have lived in the USA for a minimum period of 12 months.
In cases where a criminal record certificate is not needed as part of any visa requirement, either because the person is already present in the UK or does not need to apply for a work visa, you may ask that individual to get a check in the country they are from, or have lived and worked in. Alternatively, you may ask them for permission to get an overseas criminal record check on their behalf, although whether you will be permitted to do this will depend on the country in question and the rules for that country as set out under the guidance.
How do apply for an overseas criminal record check?
The majority of countries have procedures for the issuing of criminal record certificates (also known as certificates of good character or certificates of good conduct) to their own citizens and to third country nationals living there. However, the application process can vary from country to country, where an application must either be made directly to the relevant authority in that country, or the relevant embassy or High Commission in the UK.
Details of how to obtain a check from the relevant authorities abroad are available online at GOV.UK, with specific guidance for Countries A to F, Countries G to P, and Countries Q to Z. This guidance includes information about the process, cost and service standards for obtaining a certificate. However, this guidance is subject to change and may not reflect the current position, where the applicant will be responsible for checking with the relevant authorities whether a certificate can be obtained before an application is submitted.
As an employer, by having an understanding of the process in each country for obtaining an overseas criminal record check, this will help you to manage the expectations of the prospective employee, and enable you to plan and resource accordingly. For example, in some countries, an application can only be made locally by the individual concerned at a local police station or post office. The applicant may even need to provide fingerprints. For other countries, applications may be made by the prospective employer or a third party on the employee’s behalf through the relevant UK Embassy or High Commission.
The way in which an application will need to be submitted can also vary, from applying in person to applying by post, email, fax or online, with different documentation required in support. This can include, for example, a copy of a valid passport, a passport sized photograph, a letter from the employer with an explanation for the disclosure request, as well as an employee-signed disclosure authorising the employer to make the application.
What are the costs and processing times for overseas criminal record checks?
The cost of an overseas criminal record check will again depend on the applicable country, ranging from no cost at all to a set fee. Information on the cost of obtaining an overseas criminal record check can be obtained from the online guidance at GOV.UK. However, if an applicant has lived in several different countries, a number of separate checks may need to be undertaken, not least if they must meet the criminal record certificate requirement to apply for a visa which requires checks for any country resided in during the last 10 years.
The turnaround times for overseas criminal record checks will also depend on the country responsible for suppling the certificate, and whether the application is made from overseas or inside the UK. In some cases, a same-day check may be possible while, in others, it could take weeks or even months. In some countries, a fast-track option may be available, so it is always important to check the turnaround times for the country in question in advance, and whether or not any premium service is available where time is of the essence.
What are the challenges around applying for overseas criminal record checks?
One of the main challenges when applying for an overseas criminal record check is where the country concerned is not listed in the online guidance. However, further information on the criminal records processes overseas can be obtained from the relevant Embassy or High Commission in the UK. In some cases, it may not always be possible to obtain a criminal record certificate, for example, where a country refuses to provide certificates to anyone other than their own citizens or where there is no functioning criminal record regime.
For purposes of obtaining a visa, if the applicant cannot obtain a certificate from the relevant country, they must provide an explanation with their application to UKVI which details their attempts to obtain a certificate and why this has not been possible. Where applicable, the requirement under the rules to obtain a criminal record certificate is mandatory, although 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, UKVI has the discretion to waive the requirement, provided the applicant can provide a satisfactory explanation as to why they have not been able to obtain a certificate from any or all of the relevant authorities.
In the absence of a globalised system for overseas criminal record checks, the prospective employer and employee can only do their best to work within the limits of each regime.
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Overseas criminal record check FAQs
What is an overseas criminal record check?
An overseas criminal record check is a check undertaken via the relevant authorities or UK Embassy for a migrant worker, or anyone else who has lived abroad, to ensure they have not been convicted or cautioned of a criminal offence.
Which profession in the UK requires overseas criminal record check?
n the UK’s health and education sectors, there are statutory requirements for employers to carry out criminality checks on any prospective employee who has spent time abroad to help safeguard any children and vulnerable people that they may work with.
Does DBS check overseas?
The Disclosure and Barring Service (DBS) will check criminal records for England and Wales, but cannot access overseas criminal records. There are also separate bodies in Scotland and Northern Ireland to check the criminal backgrounds of people living there.
What countries won't let you in with a criminal record?
There are a number of countries that you may not be able to visit if you have a criminal record including Australia, Canada, China, Cuba, India, Iran and Israel to name but a few.
Last updated: 25 January 2024
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 500 and 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
