Not every foreign national accused of committing an offence in the UK qualifies for a Foreign National Offender (FNO) conditional caution.
The Home Office guidance, published on 18 September 2026, sets out the eligibility requirements for these cautions. It explains when authorities may offer an alternative to criminal prosecution.
Foreign National Offender conditional caution eligibility depends on several factors, including immigration status, the seriousness of the offence and whether the individual can leave the UK.
What Are the Eligibility Requirements for an FNO Conditional Caution?
Under Section 3 of the Home Office guidance, authorities must consider three principal requirements:
- The individual must qualify as a relevant foreign offender.
- There must be no barriers preventing their removal or deportation.
- The likely custodial sentence must fall within the threshold specified in the guidance.
The guidance refers to a likely sentence of less than two years imprisonment in Section 3. However, Section 3.4 uses the wording “two years or less”.
This distinction requires clarification when assessing cases at the sentencing threshold. Meeting the eligibility requirements does not automatically guarantee that authorities will offer a conditional caution.
Who Is Considered a Relevant Foreign Offender?
Section 22(3G) of the Criminal Justice Act 2003, as amended by the Crime and Policing Act 2026, defines a relevant foreign offender.
According to the Home Office guidance, this includes individuals who:
- Have limited permission to enter or remain in the UK.
- Are liable to removal under Schedule 2 of the Immigration Act 1971.
- Are liable to removal under Section 10 of the Immigration and Asylum Act 1999.
- Are subject to an existing deportation order.
This means that holding a valid UK visa does not necessarily prevent someone from being considered for an FNO conditional caution.
Does the Seriousness of the Offence Affect Eligibility?
Yes. Authorities must consider the custodial sentence the individual would likely receive if convicted.
The assessment takes account of the circumstances of the offence, including its seriousness, aggravating and mitigating factors, and the individual’s previous convictions. However, meeting the sentencing threshold alone does not establish eligibility.
Authorities must also consider the remaining legal requirements and any barriers to departure.
What Other Legal Requirements Must Be Met?
In addition to the FNO-specific eligibility criteria, the general requirements for conditional cautions must be satisfied.
These include:
- Sufficient evidence to charge the individual.
- An admission that they committed the offence.
- An explanation of the caution and its consequences.
- The individual’s consent and signed acceptance of the conditions.
Only individuals aged 18 or over can receive a conditional caution.
Accepting an FNO conditional caution also means agreeing to leave the UK and remain outside the country for the specified period.
Who Cannot Receive an FNO Conditional Caution?
The Home Office guidance identifies circumstances in which authorities must not offer an FNO conditional caution.
These include cases where:
- There are reasonable grounds to suspect the offence is connected to human trafficking.
- The Crown Prosecution Service confirms that the individual must give evidence in criminal proceedings that cannot take place through a live video link from overseas.
- The individual holds indefinite leave to enter or remain in the UK.
These restrictions apply even where the individual otherwise meets the eligibility requirements.
Can Asylum Claims or Family Circumstances Affect Eligibility?
Yes. Authorities must establish whether any barriers to removal or deportation exist before issuing an FNO conditional caution.
The Home Office identifies several potential barriers.
Outstanding asylum or human rights claims: An outstanding asylum or human rights claim, or related appeal, creates a barrier where the individual does not withdraw it.
Medical circumstances: A medical condition affecting the individual’s fitness to travel may prevent departure.
Family circumstances: Family circumstances in the UK may prevent an individual from accepting the caution.
Travel documentation: Authorities must consider whether the necessary travel documents can be obtained within the permitted departure period.
Where a barrier identified in the guidance prevents departure, authorities must not issue an FNO conditional caution.
What Happens After Someone Is Found Eligible?
Eligibility alone does not guarantee that authorities will offer a conditional caution. If an individual accepts one, they must comply with the attached conditions. The normal departure period is 16 weeks, although exceptional circumstances may allow up to 24 weeks.
Individuals are generally prevented from returning to the UK for at least five years. In exceptional circumstances, this restriction may extend to ten years. Where a deportation order is in force, the individual cannot return unless the Home Office revokes that order.
Why Is Understanding FNO Conditional Caution Eligibility Important?
An FNO conditional caution may provide an alternative to prosecution, but accepting one carries significant immigration consequences.
Individuals must understand the eligibility requirements, departure conditions and restrictions on returning to the UK before accepting a caution.
With over 20 years of combined immigration experience, Morgan Smith Immigration provides specialist advice on UK immigration matters. If you require professional immigration advice, contact our team on call us at call us at 0203 959 3335 or email [email protected].. Follow Morgan Smith Immigration for the latest UK immigration news, policy changes and legal developments.
