The National Crime Agency (NCA) have an array of powers available to them that can assist in their investigations of individuals suspected of criminal links and activity. These powers include Account Freezing Orders and Account Forfeiture Orders (AFOs) that can be used to freeze and, ultimately, forfeit assets that belong to an individual where those assets represent the proceeds of crime or are intended for criminal purposes. The NCA also has powers in relation to Unexplained Wealth Orders. A UWO can require an individual to disclose their nature and interest in certain property where they are a PEP (politically exposed person) or suspected of having involvement in serious crime or connected to someone so involved.
Whilst the immediate impact of AFOs and UWOs may be clear from a criminal and civil context, an interesting aspect in such situations is the potential for an NCA investigation to adversely impact the subject's immigration status in the UK.
The Home Office possesses wide powers to refuse immigration applications and curtail current permission to reside in the UK, with significant ramifications on those who are the subject of NCA investigations and proceedings.
Home Office powers
The Immigration Rules state the circumstances in which the Home Office must or has the discretion to refuse applications from individuals seeking entry clearance, leave to remain, or indefinite leave to remain in the UK.
An individual's application should normally be refused if exclusion of that individual would be "conducive to the public good… because the person's conduct, character, associations, or other reasons, make it undesirable to grant them leave".
An individual does not need to be convicted of a criminal offence for the provision to apply – as long as there is "reliable evidence" to support a decision that concludes it is undesirable to allow that individual into, or to remain in the UK, this would constitute grounds for refusal. Those individuals applying to enter or stay in the UK may therefore have their visa application refused or, significantly, their current permission to reside in the UK curtailed.
Implications for clients
Clients and their family members may be particularly vulnerable to Home Office scrutiny in line with NCA proceedings where their immigration application has relied on their own funds or their family's funds. For example, Tier 1 (Investor) visa applications may be a particular target for review as applicants must have access to at least £2 million, which they plan to invest in the UK.
Practically, even the considerable time it takes to defend such orders may severely impact the subject’s immigration status as the Home Office is likely to delay any decisions pending resolution of the relevant AFO or UWO. Such a delay will prevent the subject and their family from leaving the UK whilst a decision remains outstanding. This factor alone can add considerable stress to an already stressful situation.
A review of the client's immigration position may also have an impact on a client's long-term immigration plans. Applicants wishing to naturalise as a British citizen under the British Nationality Act 1981 must be of good character. Factors taken into consideration when assessing a person's good character will include any pending prosecutions, suspected criminal activity and finances of questionable origins, amongst others. Therefore, any such proceedings will undoubtedly increase the risk of an unsuccessful application, which may be extremely difficult to challenge where there is a court finding.
Furthermore, judgments in NCA initiated proceedings can contain damaging statements relating to a person's character, associations and businesses, which may adversely impact a client's immigration status, regardless of the outcome of the NCA proceedings. Negative publicity surrounding the proceedings and the associated reputational damage may remain in the public domain for many years, even following an acquittal.
NCA proceedings can clearly engage the Home Office and therefore clients and criminal lawyers should seek specialist immigration advice for clients at the earliest possible stage to preserve and protect a client’s immigration position in the UK.
Any adverse immigration action taken by the Home office may include curtailment of the existing permission to reside, failure to extend permission, removal or even deportation action. The ability and need to engage with the Home office proactively to prevent such action, or even to seek interim decisions from the Home Office which allow a client to continue travelling pending a final decision may be hugely valuable to a client facing potential action through the scope of the NCA's powers.
The impact of potential NCA proceedings and action will undoubtedly require specialist advice. However, it is also important to consider a client's immigration status, and care should be taken to ensure that each client's immigration status is an integral part of an overall strategy and approach.
We work across departments to provide a holistic approach for clients. For any further queries on how such proceedings may impact on immigration matters please contact Kamal Rahman or Lucy Humphreys.