Good character - what has changed?
The British Nationality Act 1981 requires any person who is over the age of 10 who wishes to register or naturalise as a British Citizen to be of ‘good character’. This is not defined in the Act, but Home Office nationality policy guidance explains how ‘good character’ will be assessed. This contains a non-exhaustive list of conduct that will mean an applicant is not of ‘good character’ including criminality, terrorism, financial soundness, notoriety deception and dishonesty and immigration-related matters.
The guidance was updated on 16 January 2019. This article will summarise the most significant changes to the guidance.
Application of the ‘good character’ requirement to children
Campaigners have criticised the harsh impact of applying the ‘good character’ requirement to young persons (those aged between 10 and 17). In 2017, the Independent Chief Inspector of Borders and Immigration carried out an inspection into the requirement as applied to young persons applying to register as British ‘by discretion’. It recommended that guidance was produced specifically in relation to young persons and ‘good character’ which reflected the Home Office’s statutory obligations to make the ‘best interests’ of teh child a primary consideration. At the time, young persons were being treated in the same way as adults.
The updated guidance now includes a section stating that decision-makers must consider information and evidence concerning the best interests of a child when assessing whether they meet the good character requirement.
In relation to criminal convictions, which operate to create time-limited ‘bans’ on being able to meet the good character requirement, the guidance tells decision-makers that they must take account of ‘any mitigation relevant to the child’s particular circumstances’. However, it goes on to state that this will have been taken into account when a child was sentenced.
The guidance makes it clear that discretion may be exercised where they have been sentenced to imprisonment for over 4 years, which would normally result in a lifetime refusal of citizenship.
Failing to comply with immigration requirements will generally be disregarded if it was a child, if it is accepted that the conduct was outside their control.
The guidance does not seem to go far enough in implementing the recommendations from the Chief Inspector and genuinely giving effect to the best interests of the child.
Immigration offences: Overstaying, illegal entry, absconding and illegal working
Overstaying is now included as conduct that will lead to refusal of an application. The guidance suggests that discretion to overlook this breach will only be considered if it is the sole adverse factor relating to a person’s character and it has been disregarded in line with provisions in the Immigration Rules to do so during a ‘grace period’ or the person was not at fault for becoming an overstayer.
Otherwise, the person will have to wait 10 years before being able to naturalise. It is not clear whether this 10 year period begins from the date a person became an overstayer or the date their period of overstay came to an end. It is also arguable that the relevant date should be the date an applicant made an application that was subsequently granted.
Illegal entry and absconding will also lead to a 10 year period in which a person cannot meet the ‘good character’ requirement. The 10 year period starts from the date of illegal entry or the date the person last came to the attention of the Home Office. Similarly, illegal working will lead to refusal if a person has worked in the UK within the 10 years prior to the decision, when the conditions of their leave did not permit this.
Illegal entry in the case of persons who are later recognised as refugees must take into account Article 31 of the Refugee Convention, which exempts refugees from penalties, if they have come directly from a place where they have fled persecution, present themselves to the authorities without delay, and show good cause for entering illegally.
The guidance appears to be more restrictive than the Convention, suggesting that refugees should claim asylum within 4 weeks of arrival, or provide a reasonable explanation for the delay.
It also suggests that a factor that may cast doubt on an applicant’s character is whether they failed to claim protection in the first available safe country. There is no obligation to do so under the Convention and this is supported by domestic case-law.
Genuine Mistakes
The guidance confirms that an application must not be refused if the decision-maker is satisfied that a person made a genuine mistake, or claimed something to which they reasonably believed or were advised they were entitled to as long as there are no other adverse factors impacting on the applicant’s good character.
Conclusion
It is important to address the good character requirement in any application for registration or naturalisation. Applicants should disclose all relevant information, as an accusation that they have used deception in the current application will lead to a 10 year period of refusal.
The application fee is high, which may mean that it is best to delay an application until it is clear that the good character requirement will be met. If any matters in the guidance do apply to you, you should provide arguments as to why discretion should be used in your favour.
Contact Our Immigration Barristers
For expert advice in relation to an application for citizenship or advice on challenging a refusal based on failing to meet the ‘good character’ requirement, contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.
