Katie Newbury, Partner, Kingsley Napley
In October 2020, the Government announced significant changes to the Immigration Rules on suitability and when someone could be refused entry to the UK on the basis of criminality.
In a detailed statement which announced the changes, the following was written in respect of the proposed suitability changes:
"The new rules also reflect the policy intention for decision-making to be tougher at the border in relation to visitors and those entering the UK for the first time."
At the time this was being announced, the US was bracing for their 2020 election and it is unlikely the UK Government could foresee that within just four short years, such new rules might find themselves applying to the then President of the United States.
As we explored in another blog, shortly after his 2016 electoral victory, Donald Trump has British ancestry through his mother and could apply to register as a British Citizen on that basis. When we looked at this in 2017, we looked at whether he would meet the good character test which forms part of such a registration application. Meeting this test would be further complicated now with a criminal conviction.
For the purposes of this blog, we are going to forget about any potential claims to British nationality and instead look at the difficulties Trump may now face coming to the UK as a visitor. We will be examining this on the basis that Trump is no longer President and would likely be travelling to the UK as a private citizen (perhaps to attend one of his golf courses), rather than on official state business.
Consideration of the impact of criminal convictions on travel to the UK is particularly relevant given the anticipated roll out of Electronic Travel Authorisation (ETA) to American citizens before the end of 2024. This new system will require non-visa nationals (ie. those who do not require a visa to visit the UK) to apply for electronic authorisation prior to travelling to the UK. This scheme is already in place for nationals of 7 countries and the UK intends for this to be rolled out to all non-visa nationals by the end of 2024.
An ETA will be valid for two years or when the person’s passport expires, whichever comes first.
In order to make the application, an applicant has to answer questions about previous criminal convictions. This is because there are restrictions on people coming to the UK in some cases where they have previously received a criminal conviction. For visitors, there is a mandatory exclusion on entry to the UK for 12 months following any criminal conviction and, to reflect that, an ETA would be refused if someone had a conviction in that time period.
It therefore looks like Trump should be facing at least a 12 month ban from visiting the UK (perhaps a relief for any politicians wary of a distracting visit during a UK election campaign!) but could he experience restrictions on coming to the UK beyond that?
Depending on the severity of the conviction, a person can face mandatory and/or discretionary lifetime bans from the UK. A mandatory ban applies where someone has been given a custodial sentence of 12 months or more (even if they only serve part of that sentence); has committed a criminal offence or offences which caused serious harm; or, if they are a persistent offender who shows particular disregard for the law. There are discretionary grounds of refusal for offences which don’t meet these thresholds too. If a custodial sentence is fully suspended, it is only considered a custodial sentence if it is at any point triggered.
The maximum sentence Trump could receive for each of the charges is reported to be four years imprisonment although much of the commentary suggests that him serving a custodial sentence is unlikely. If Trump does not receive a custodial sentence of 12 months or more, we would then need to consider whether the offence is one which could be said to have caused serious harm or if he would be shown to be a persistent offender.
On 30 May 2024, Donald Trump was found guilty of 34 felony counts related to falsifying business records in relation to payments made to Stormy Daniels in the run up to the 2016 election.
The guidance states the following regarding serious harm:
An offence that has caused ‘serious harm’ means an offence that has caused serious physical or psychological harm to a victim or victims, or that has contributed to a widespread problem that causes serious harm to a community or to society in general.
Where a person has been convicted of one or more violent, drugs-related, racially-motivated or sexual offences, they will normally be considered to have been convicted of an offence that has caused serious harm.
It seems unlikely that the offences here are likely to reach the threshold of ‘serious harm’ and result in a mandatory ban from the UK.
With regard to the risk of a mandatory refusal on the basis of being a persistent offender, it is possible this could create an issue in the future as Trump may face a further three criminal cases related to allegations that he:
Conspired to overturn the 2020 election
Conspired to overturn his defeat in Georgia in the 2020 election
Mishandled classified documents by taking them to Mar-a-Lago after he left office in 2021
No date has yet been set for trials in the additional cases and a recent Supreme Court decision on presidential immunity may impact if and how they proceed but it is clear that any further convictions could be considered to have a bearing on Trump’s ability to come to the UK in the future.
If Trump was refused an ETA (as he would automatically be if he had received a conviction in the last 12 months), it would still be open to him to apply for a visit visa. While there are mandatory bans from the UK, it is always possible to ask for discretion and for leave to be granted even where it is outside the rules. Where criminal convictions are involved, we would always want to look at these in more detail before advising as to whether they were entirely prohibitive. In this case, a full visa application may be complicated by the other criminal cases as where someone has ‘pending prosecutions’ it is typically Home Office policy to pause consideration of an application until those cases have been concluded.
As mentioned, beyond the mandatory grounds for refusal, there are discretionary grounds for refusal where criminal conduct does not meet the thresholds set out above and there are also grounds for refusal where a person’s presence in the UK is not conducive to the public good because of conduct, character, associations or other reasons. Much of this was explored in our earlier blog looking at whether Trump would be considered to be of good character.
It seems unlikely that Trump would be subject to a ban from the UK as things currently stand given the significant political statement that would make towards someone who could soon be the leader once again of the UK’s closest ally. However, it does shine a light on how tight the restrictions are on entry to the UK, how long lasting these penalties can be and how little flexibility there is to consider specific circumstances.
At the moment, many non-visa nationals can travel freely to the UK and enter as visitors even if they have a recent or historical criminal conviction.
As ETA begins to roll out later this year, the scale of the impact of these restrictions will become increasingly clear as people who have never encountered travel issues begin to receive ETA refusals.
If this is something you are concerned about, we would suggest seeking advice on travel at the earliest opportunity.
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