The UK Government’s press release confirmed that the ETA scheme will be fully rolled out to all applicable countries by April 2025 – later than the original end of 2024 deadline.
The ETA scheme first launched in October 2023 for Qatari nationals before expanding to nationals of GCC countries (Bahrain, Jordan, Kuwait, Oman, Saudi Arabia, and the United Arab Emirates) in February 2024.
Now, it is confirmed that the ETA will be rolled out to the remaining countries as follows:
- On or after 8 January 2025 – all applicable non-EU/EEA countries, including the US, Australia, Canada, New Zealand, and various Caribbean and South American nations, as well as Hong Kong Special Administrative Region (including British National (Overseas)).
- On or after 2 April 2025 (with applications starting from 5 March 2025) – all EU and EEA countries (excluding Ireland) and Switzerland.
Applicants with criminal history – following the US approach
Applying for an ETA means that all relevant non-visa national travellers (including BNO, HKSAR, EU/EEA/Swiss, US, Australian, and Canadian nationals) will need to declare criminal convictions and any adverse UK immigration history.
According to the UK Government press release issued before the ETA scheme was first launched, the ETA scheme will be “a new US-style Electronic Travel Authorisation scheme to slam the door on criminals before they even get here.”
Since January 2010, the US has operated the Electronic System for Travel Authorization (ESTA). The process of applying for the US ESTA requires completion of an online form and payment of a fee prior to travel. Applicants will be denied an ESTA if they have “been arrested or convicted for a crime that resulted in serious damage to property or serious harm to another person or government authority.” Instead, such applicants have to apply for a B-1 visit visa at a US Consulate abroad, which is a much more cumbersome process.
Denials affect a wide range of travellers, from celebrities and senior executives to ordinary leisure travellers. Even minor offences can result in denial.
The position for travellers with criminal convictions
Many non-visa nationals can travel without pre-clearance, boarding flights directly to the UK, including individuals from the EEA, the US, Australia, Canada and New Zealand. Previously, on arrival to the UK, non-visa nationals were generally not asked about criminal convictions, except in specific circumstances where their names appear on international criminal databases. As a result, most non-visa nationals (who may posses minor or historic criminal convictions) did not face issues upon arrival in the UK.
With the introduction of the ETA, individuals who have previously visited the UK without issue may now find themselves refused an ETA (as a result of now having admit to their convictions) and directed to apply for a visa instead – which will be much more difficult, costly and timely process.
Refusal on the grounds of criminality will occur where the applicant:
- has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of 12 months or more; or
- has been convicted of a criminal offence in the UK or overseas unless more than 12 months have passed since the date of conviction.
Applying for an ETA visa
Applications can be made through the UK ETA app, where applicants will scan their passport, take a selfie, and complete a questionnaire detailing personal information, immigration history, and any criminal convictions.
The grounds for ETA refusal include:
- criminality grounds – where an applicant has a recent or serious conviction;
- non-conducive grounds – where the applicant’s presence in the UK is not conducive to the public good;
- previous breach of immigration law grounds – where the applicant has precious breached immigration laws;
- false representations grounds – where false representations were made or relevant facts were not disclosed;
- previous refusal of a visitor visa application, and
- cancellation of an ETA without subsequent visa approval.
The cost for an ETA is UK£10 per person. Decisions are typically made within three working days, although further checks may extend this timeframe. If granted, ETAs are valid for two years or until the applicant’s passport expires, whichever comes first.
Impacts
Individuals most affected will be those who do not qualify for the ETA visa but were eligible to travel to the UK previously without a visa. They will now be forced to make visit visa applications.
The Home Office anticipates around 30 million ETA applications annually. If only 1% of those applicants have criminal convictions that would not have previously required disclosure, this could generate an additional 300,000 visa applications for processing.
It seems likely that those with criminal convictions or previous immigration breaches who have not been caught by the lack of sophistication in the checks, may start to encounter difficulties.
Concerns persist regarding the Home Office’s ability to handle this increased workload, given ongoing delays in processing applications across various visa routes. The Home Office has acknowledged the expected rise in visa demand and is factoring this into their capacity planning.
Additional considerations for BNO and HKSAR passport holders
British National (Overseas) (BNO) and Hong Kong Special Administrative Region (HKSAR) passport holders will also be subject to the new ETA requirements. BNO passport holders, who have unique immigration pathways established in response to recent geopolitical developments, must ensure they comply with the ETA application process.
Given the complexities surrounding their immigration status, it is crucial for BNO and HKSAR passport holders to be aware of their eligibility and any potential issues related to past criminal convictions or immigration history. The introduction of the ETA may particularly affect those who have previously travelled without disclosing any historical offences, now needing to navigate the new requirements effectively. This could pose significant challenges, especially for those with minor or historic convictions, as they will need to assess their eligibility more carefully before travel, as well as obtain records from Hong Kong authorities, adding an extra layer of time and cost of the overall application.
Issues for Employers
Employers will face new challenges as employees must disclose their historic or recent criminal convictions, which may have been classified as “spent” or expunged in other jurisdictions. For example, an executive who travelled frequently to the UK may not have had to disclose such information until now. This change will require employers to educate their global HR teams about the new requirements, ensuring that business travellers secure their ETAs well in advance.
Moreover, companies may need to reassess their hiring policies and practices to accommodate the potential for increased scrutiny of employees’ criminal records. Failure to comply with the new regulations could lead to disruptions in travel plans, impacting business operations and potentially resulting in legal liabilities for non-disclosure.
To sum up
The challenges faced by travellers to the US may soon be mirrored in the UK and the EU, as more visa-free visitors are required to disclose past indiscretions. Increased litigation is likely, with UK courts potentially handling more judicial review cases concerning exclusion based on criminality, as there is currently no right of appeal against a visitor visa refusal.
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This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.