Sponsoring Employees on the Health and Care Worker Visa and the Need for an Overseas Criminal Record Certificate

Posted onAugust 3, 2023

If you are a UK care or nursing home with a sponsor licence the likelihood is that if you try to sponsor a recruit on a UK health and care worker visa the worker will require an overseas criminal record certificate.

In this blog, our immigration solicitors look at the requirements and process for a criminal record check.

UK Online and London-Based Immigration Solicitors and Sponsorship Licence Lawyers

For sponsor licence and business immigration advice call OTS Solicitors on 0203 959 9123 or contact us online.

The need for a criminal record check

If a job applicant is applying for a job in education, health or social care and requires a skilled worker visa or health and care worker visa they may need to provide a criminal record check (referred to as an overseas criminal record certificate) as part of their visa application process. The requirement for a criminal record certificate depends on the job’s standard occupational classification code. Depending on the code the certificate may be a mandatory requirement.

If a job applicant can't provide a certificate as part of their application for the job, then they will need to understand that you may not be able to process their application. In some cases, where countries permit, you may be able to apply for the criminal record certificate with the applicant’s written consent.

If the job applicant is already in the UK and is switching to your employment, they may not need to provide an overseas criminal record certificate. Likewise, if a current employee is applying to extend their health and care worker visa or skilled worker visa, they won't need to produce an overseas criminal record certificate as part of their visa extension application process.

Onus on the visa applicant to request the overseas criminal record certificate

The onus is on the visa applicant to request the overseas criminal record certificate. The complexity and length of the wait for the certificate will depend on their home country and the extent they have travelled outside their home country.

Sponsorship Licence lawyers understand the frustrations of care home managers that there is no one international and speedy digitalised service providing these checks quickly and efficiently at the request of the sponsoring employer (with the consent of the recruit).

The requirements for a UK criminal record certificate

If a visa applicant has to produce an overseas criminal record certificate the Home Office rules say that:

The certificate must be original or a scanned copy
The certificate must have been issued by the relevant authority in any country where the visa applicant when aged 18 or over spent 12 months or more (continuously or in total) in the past 10 years
Where a certificate relates to the visa applicant’s last country of residence the certificate must not have been issued over 6 months before the visa application
Where a certificate relates to other countries (other than the last country of residence) the certificate must have been issued to the visa applicant within the last 6 months before their last period of stay was completed
The certificate must be in English and if it isn’t in English or Welsh a certified copy is necessary

The impact of a criminal record certificate on a visa application

In some situations, the content of a criminal record certificate will result in a health and care worker visa or skilled worker visa refusal. Some Home Office refusals are on mandatory grounds and others are discretionary decisions.

Care and nursing homes are understandably anxious only to employ suitable and caring people within the health care sector but the wait for production of the overseas criminal record certificate and the Home Office checking can be tortuously slow. However, it isn’t all bad news, in some cases, certificates can be produced very quickly.

Mandatory refusal of a visa after production of an overseas criminal record certificate

A Home Office official has no discretion and must refuse a visa application where an overseas criminal record certificate is required as part of the visa application process and the certificate states the applicant received a prison sentence of:

4 years or longer
Less than 12 months unless 7 years or more years have elapsed since the end of the sentence
Between 12 months and 4 years unless 15 years or more have elapsed since the end of the sentence

Furthermore, a visa application will be refused if the visa applicant has received a conviction for a criminal offence which resulted in a non-custodial sentence or out-of-court disposal less than 24 months before the date of the visa decision.

For the purposes of these rules, non-custodial sentences include a fine or driving disqualification or civil orders. Fixed penalty notices do not normally result in the mandatory refusal of a worker’s visa application.

Discretionary refusal of a visa after production of an overseas criminal record certificate

If a visa applicant doesn’t fall within the mandatory grounds for refusal their visa application may still be refused on discretionary grounds by the Home Office caseworker.

The discretionary grounds are more nebulous than the mandatory grounds for refusal so a visa applicant for a health and care worker visa may be confident that they will secure a visa but still have their application refused.

A Home Office official can exercise discretion to refuse a visa based on the overseas criminal record certificate if it considers that:

The applicant’s conduct, character, or associations make it undesirable for the visa applicant to be granted a visa or
The applicant will pose a threat to national security
The applicant is a persistent offender
The applicant caused serious harm by their offending behaviour

What happens if a recruit can't obtain a criminal record certificate

Sometimes a visa applicant can't get a criminal record certificate. This is sometimes the case if the applicant has travelled extensively over the previous 10 years and 1 or more of the countries refuse to provide a certificate for a non-national.

The visa applicant can still apply for a visa if the certificate is not mandatory for their job role but they will need to explain the absence of the certificate or certificates. A written explanation for not producing the certificate/s will need to be provided. The letter will need to detail attempts made to obtain the certificate and the reasons for the failure to produce it. The Home Office may then exercise discretion and grant the visa notwithstanding the inability to provide the required criminal record certificate/s.

The Home Office guidance says that if a criminal record certificate/s cannot be produced the sponsoring employer should obtain references before the applicant’s employment commences. From a sponsoring employer’s point of view, this is far from satisfactory as it is difficult to check overseas references. However, most sponsoring employers would also recognise the limitations of a criminal record certificate when it comes to assessing an individual’s suitability to work in their business.

The process to apply for an overseas criminal record certificate

The application process for a criminal record certificate varies from country to country. Sponsorship Licence lawyers can often give guidance on timescales to obtain a certificate to enable sponsoring employers to understand the applicant’s likely start date, assuming they are granted a health and care worker visa. Alternatively, country-specific information is available on a government website. Some certificates can be provided quickly and some countries offer a priority or fast-track application process.

In some countries, an application for a criminal record certificate can only be made by the visa applicant and not by the prospective employer, even if the business has the written consent of the recruit to try to obtain the certificate. In some cases, a business may need to provide a letter explaining why the applicant needs a criminal record certificate so they can supply this with their documents when applying for their certificate.

How can OTS Solicitors help your business?

Our business immigration lawyers have substantial experience in sponsor licence applications and management and offer a full package of application and sponsor licence management support or can work with a business to provide a package that suits them. In addition, we can support you with answering queries on certificates of sponsorship allocation or individual work visa applications.

UK Online and London-Based Immigration Solicitors and Sponsorship Licence Lawyers

For sponsor licence and business immigration advice call OTS Solicitors on 0203 959 9123 or contact us online.

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