What this information is about  

This blog is about the expansion of the use of conditional cautions as they relate to immigration status. A recent change means people with limited leave to remain (LLR) will now be treated as “foreign national offenders” and may be given cautions which include a condition to leave the UK. 

This is a further encroachment of the hostile environment and expansion of the unjust system of double punishment faced by non-British people accused of crimes.  

Who is this information for? 

The recent change means that anyone with LLR, insecure or no immigration status could be impacted if they come into contact with the criminal justice system. 

This blog is for the whole community, particularly for those supporting or working with people in the criminal justice system. We hope people will help us spread awareness. There has been very little publicity around this change and we are concerned that people will face these measures without knowing their rights.  

What is a conditional caution? 

A conditional caution can be given for any minor criminal offence that carries a sentence of two years in prison or less. 

When the police suspect someone of a minor criminal offence, and that person admits the crime, this can be recorded as a formal “caution” without further action being taken. This is instead of the person being charged with the crime or prosecuted.  

Accepting a caution means admitting the criminal offence. You can refuse a caution, which may mean being charged and prosecuted for the offence. 

Certain conditions can be attached to a caution which must be met, otherwise formal prosecution will follow. This could include things like tackling addiction issues or paying a fine. 

One of those conditions, for people classed by the Home Office as “foreign national offenders”, might be to leave the UK. 

What has changed?  

Previously, people classed as “foreign national offenders”, who could be issued with this kind of conditional caution, were people with no immigration status. This changed with the Crime and Policing Act 2026, which meant that people with limited leave to remain – anyone with temporary immigration status or a visa in the UK – could also be classed as a “foreign national offender”.  

What can you do about it? 

It is very important for people to know their rights and to get immigration advice if they are in a situation where they may be given this kind of caution. Criminal solicitors may not be familiar enough with immigration law to help. 

There are in reality a lot of reasons why it may not be possible for someone on a visa to be given this kind of caution. If there are barriers to removal, this caution cannot be imposed. 

According to the policy these barriers to removal are if:  

• there is an outstanding asylum or human rights claim or related appeal and the person does not withdraw that claim or appeal 

• there are medical conditions impacting on the foreign national offender’s fitness to travel 

• the foreign national offender claims their family circumstances in the UK preclude them from accepting a caution 

• a valid travel document cannot be obtained within the time period for the foreign national offender to leave the UK 

• there are reasonable grounds to suspect the offence is connected to human trafficking 

It is unclear in the policy how these will work in practice – who will know or be able to advise about whether these barriers are in place? The policy also says:  

If the foreign national offender raises any issues that may prevent removal within the time period specified in the foreign national offender conditional caution, this may be a breach of the caution. 

In other words, if someone later receives immigration advice and realises that they can make a claim to asylum or for another immigration status based on family life, they will be treated as having breached a caution, which could have further consequences.  

What we advise 

We know that in a situation where someone is threatened with prosecution for a minor offence, accepting a caution may instead feel like the better option. However, due to the possible consequences, we advise that people do not accept a “foreign national offender” conditional caution unless they are prepared to leave the UK. Instead, we advise people get immigration advice as well as criminal legal advice. 

If someone has already accepted a caution of this kind, it is still important to get immigration advice. They may also want to look into challenging the caution – please see this information from Hickman Rose.  

What we can help with  

At GMIAU, we cannot advise on criminal justice issues. We provide immigration advice, although we have low capacity and cannot take on the majority of cases that are referred to us. We do provide tailored legal advice in response to as many enquiries as we can.