Good character requirement in British citizenship applications
From 13 December 2012 changes were introduced to the good character requirement in relation to applications for British citizenship. Applications made on or after 13 December 2012 which feature a criminal conviction will no longer be assessed against the Rehabilitation of Offenders Act 1974. From 1 October 2012 certain immigration and nationality decisions were exempt from section 4 of the Rehabilitation of Offenders Act 1974. The concept of a conviction becoming ‘spent’ no longer applies when making an assessment of good character for the purposes of nationality applications. As a consequence, UKBA caseworkers will now apply the sentence thresholds contained within the Nationality Instruction on Good Character.
Under the amended good character provisions, applications which feature a criminal conviction will be assessed with reference to the following amended set of sentencing limits:
Sentence Length of impact on nationality applications
Non-custodial sentence 3 years
Up to 12 months imprisonment 7 years
Between 12 months and 4 years imprisonment 15 years
4 years or more imprisonment Application will be refused regardless when the conviction occurred
Under the previous regime of the Rehabilitation of Offenders Act 1974 the appropriate periods were:
Fine or community service 5 years
Up to 6 months imprisonment 7 years
Between 6 months and 2½ years imprisonment 10 years
More than 2½ years imprisonment never becomes spent
The December 2012 amendments in some circumstances are more generous than those contained within the rehabilitation period as provided for by the Rehabilitation of Offenders Act 1974. For example, a conviction resulting in a non-custodial offence will have an impact on an application for three years from the date of conviction. The rehabilitation period under the Rehabilitation of Offenders Act 1974 for certain non-custodial offences (for example a fine or a community sentence), as identified above, is a period of 5 years.
Fixed penalty notices and penalty charge notices are a way of dealing with relatively minor offences without the need for a person to attend court. Since there is no admission of guilt, receiving either of these notices does not form part of a person’s criminal record. Unless the applicant has received numerous fixed penalty notices within 12 months preceding the application, they are unlikely to impact upon the good character requirement.
However, being free from criminal convictions is one aspect of the good character requirement. The UK Border Agency’s Nationality Instructions set out a number of additional factors which may inform the caseworker as to whether a person is of good character. For example, where information is disclosed to the UK Border Agency that an applicant is known or suspected of some criminal activity, but for various reasons they have neither been charged nor convicted. The Nationality Instruction states that the caseworker should ‘take into account the nature of the information and the reliability of the source. If, on the balance of probabilities, there is firm and convincing information to suggest that an applicant as a knowing and active participant in serious crime (for example, drug trafficking), the application should normally be refused’.
Additionally, involvement with gangs or association with known criminals are possible grounds for the rejection of a naturalisation application on the grounds of character.
The UKBA will also have regard to the applicant’s financial affairs and will check to see whether they have been declared bankrupt or are otherwise meeting their tax obligations. In addition, non-payment of council tax is regarded as a punishable offence and failure to pay council tax, without having negotiated some sort of arrangement with the local authority, could result in the application being refused.
The Nationality Instruction demonstrates that UKBA caseworkers have a wide discretion in assessment of an individual’s application as to whether they are a person of good character. Our immigration barristers are able to advise on the prospects of an application being successful and whether an applicant is likely to satisfy the character requirement.
If you would like further advice on applying for naturalisation as a British citizen then please contact our immigration barristers in Covent Garden, London on 0203 617 9173 or email info@richmondchambers.com.
