Ciera McCartney

Changes to the Good Character requirement for British citizenship applications

7th September 2023 By Ciera McCartney

On 31 July 2023, the Home Office implemented changes to the good character requirement for naturalisation applications which now make it more difficult for individuals with a criminal record to obtain British citizenship.

What is the good character requirement?

The ‘good character’ requirement arises in statute, set out in schedule 1 to the British Nationality Act 1981. There is, however, no statutory definition and the requirement is instead very much at the discretion of the Secretary of State. The definition has evolved over time in her policy guidance and currently a number of factors are considered when determining whether someone is of ‘good character’, including criminality, international crimes, terrorism and other non-conducive activity, financial soundness, notoriety, deception and dishonesty and immigration-related issues.

With regards to criminality, since 2012, applicants are required to disclose all convictions, regardless of whether or not they are ‘spent’ under the Rehabilitation of Offenders Act 1974 (1974 Act). This means the Home Office will take into account any past convictions regardless of when they took place.

What has changed?

The policy guidance was amended so that for applications made on or after 31 July 2023, the previous sentence-based criminality thresholds for good character no longer apply.

Now, anyone who has received at least a 12-month custodial sentence (or consecutive sentences totaling at least 12 months) will normally have their naturalisation application refused no matter how much time has passed since the sentence finished. This marks a significant change, as prior to 31 July 2023, this was only the case for those who had received a sentence of at least 4 years or more. Applications will also normally be refused if an applicant is determined to be a ‘persistent offender’, has committed an offence which has caused serious harm or committed a sexual offence, or their details are recorded by the police on a register.

Furthermore, for applications made after 31 July 2023, the guidance now states an applicant must have their naturalisation application refused if they have a custodial sentence of less than 12 months or a non-custodial sentence or out-of-court disposal recorded on their criminal record and the Secretary of State is not satisfied, on the balance of probabilities, that the applicant is good character. Prior to 31 July 2023, the sentence-based thresholds set out that an application would normally only be refused for a person with a custodial sentence of less than 12 months if a period of 10 years had not passed, or for a person with a non-custodial sentence or out-of-court disposal if a period of 3 years had not passed. The factors the Home Office states it will consider when considering ‘the balance of probabilities’ is therefore much vaguer than the previous sentence-based thresholds and makes it much more difficult to determine the likelihood of whether an application may be successful or not.

The policy guidance does state that exceptional grants of citizenship may be possible. However, applicants will need to provide strong mitigating circumstances that would evidence sufficient rehabilitation in addition to countervailing evidence of good character, and cases will ultimately be assessed on a case-by-case basis.

If you or someone you know needs advice on their naturalisation application and may be concerned about the good character requirement, we would be happy to help. Please contact us on 0207 401 6887 or by email at contact@gryklaw.com.

Update to the Youth Mobility Scheme for New Zealand nationals

18th May 2023 By Ciera McCartney

On 9 March 2023, the Home Office announced that it was expanding the Youth Mobility scheme for New Zealand nationals, setting out that from 29 June 2023 onwards, the age limit for New Zealand applicants coming to the United Kingdom would go up from 30 to 35 years old and the maximum length of time a New Zealand national could stay on this route would be extended to three years.

These changes were set out on the same day in the 9 March 2023 Statement of Changes to the Immigration Rules. While this statement set out the changes to the Immigration Rules to take effect from 29 June 2023, it did not provide any practical clarity on the process those New Zealand nationals currently in the United Kingdom on a Youth Mobility visa for two years will need to follow to extend their leave in-country for a further year prior to their current leave expiring.

After making enquiries with the Home Office, we have now received written confirmation that from 29 June 2023, New Zealand nationals with a valid Youth Mobility Scheme visa will be able to apply for a one-year extension, as long as they are in the United Kingdom at the date of application with a valid Youth Mobility Scheme visa and are a New Zealand national who continues to meet the suitability requirements, i.e., that they do not fall for refusal under the general grounds for refusal as part of the Immigration Rules.

Applicants must ensure that they submit their application for an extension prior to the expiration of their current immigration permission. The submission date is the date that the application is triggered online and therefore, as long as the application is made before their permission expires, the applicant’s conditions and right to remain in the United Kingdom will continue on the same basis until a decision is taken on the next application. In other words, they can continue to reside and work in the United Kingdom while their application is outstanding. However, it is very important for applicants to be aware that they should not travel outside the United Kingdom while their application is pending, as doing so would automatically withdraw the application. If successful, leave will be granted for a further one-year period.

The Home Office have confirmed that more information will be published shortly about the launch of the in-country route, including information on how to apply and which online application form to use, on the gov.UK Youth Mobility Scheme page which can be found here.

In the meantime, if you do have any questions in relation to the above or on any other immigration matters, we would be happy to help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com.

Home Office update confirms British citizenship rights for those born to EU nationals between 1 January 1983 and 1 October 2000

13th April 2023 By Ciera McCartney

We recently wrote about the judgment published by the High Court in R(Roehrig) v SSHD EWHC 31 (Admin) in January of this year.

To summarise, since the introduction of the British Nationality Act on 1 January 1983, a person born in the United Kingdom is only British if they are born to a parent who is British or settled in the United Kingdom. This has however, been more complicated for those persons born in the UK to EU nationals. Up until 1 October 2000, the Home Office’s position was that, as EU law imposed no conditions on how long an EU national could remain in the United Kingdom if they were working, self-employed, students or self-sufficient, those EU nationals who were exercising rights of free movement were considered settled for these purposes and children born to them were considered British. This position changed on 2 October 2000, from which point onwards the Home Office stipulated that European parents had to have been granted indefinite leave to remain (and from 2006, acquired permanent residence) to be considered settled in the United Kingdom.

The Roehrig judgment confirmed the more restrictive approach adopted by the Home Office since 2 October 2000, i.e., that EU nationals who did not hold indefinite leave to remain were not settled, was the correct interpretation of the British Nationality Act, raising potentially serious implications for those children (and potentially their children thereafter) who had been deemed automatically entitled to British nationality and issued British passports on this basis.

Following the judgment, on 23 March 2023 the Home Office proceeded to amend its guidance on automatic acquisition of British citizenship to state:

“While the Home Office assesses recently identified legal issues, the policy for acquisition of citizenship by individuals born in the UK between 1 January 1983 and 1 October 2000 inclusive to an EEA national parent has been suspended. However, if someone has already been recognised as a British citizen, for example through the issue of a British citizen passport, we will continue to treat them as such.”

Now, following a meeting with the Home Office organised by the Project for the Registration of Children as British Citizens (PRCBC) and attended by Amnesty International UK, ILPA, the3million and HM Passport Office, it has been confirmed as set out in the joint statement published by PRCBC, Amnesty International UK, ILPA and the3million that the Home Office intends to legislate as soon as possible to amend British nationality law. This will ensure that what has been applied by the Home Office, up to at least October 2022, concerning what was previously understood as British citizenship rights for those born to EU citizens between 1 January 1983 and 1 October 2000, will be made law by Act of Parliament.

In the meantime, and up until the law can be amended, the Home Office have confirmed protective operational measures to:

continue to respect the right to a British passport of anyone affected by this change to whom it has previously issued either a British passport or some other confirmation of their British citizenship (including processing any application to renew a passport); and
find ways that may enable a person affected by this change, who has not previously been issued with a British passport or some other confirmation of their British citizenship, to secure British citizenship (or failing that, some other secure status in the UK in the interim).

While litigation on this matter continues, the Home Office have confirmed it is their intention to take these protective operational steps and make the legislative changes set out above without waiting for the conclusion of litigation, to protect the British citizenship of those affected.

This update will therefore hopefully provide some relief and clarity to people born in the United Kingdom to EU citizens between 1 January 1983 and 1 October 2000, as well as for the children subsequently born to these individuals.

If you would like further advice in relation to the above or on any other nationality matters, we would be happy to help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com.

Biometric Residence Cards and Third Country Nationals

12th March 2021 By Ciera McCartney

When applying to the European Settlement Scheme from within the UK, most third country nationals (i.e., non-Europeans) will already hold a Biometric Residence Card issued to them because of their right to reside in the United Kingdom under European law. This document proving their status, the Biometric Residence Card, will have been issued under the EEA Regulations.

Third country nationals who have not previously held a Biometric Residence Card issued under the EEA Regulations will be invited to attend an appointment to provide their biometric data with the Home Office provider Sopra Steria. If the application for pre-settled or settled status is granted, the individual will be issued with a Biometric Residence Card under the European Settlement Scheme.

However, those third country nationals who apply to the European Settlement Scheme and already hold a valid Biometric Residence Card issued under the EEA Regulations are currently not issued with an updated Biometric Residence Card.

For example, a third country national who submits an application with two weeks left until their card issued under the EEA Regulations expires will not receive a new Biometric Residence Card under the European Settlement Scheme. The Home Office has confirmed this is because their card is still valid at the time the application was made. They have also confirmed this is the case even if the EEA card has expired by the date of the decision. An individual in this scenario will therefore also not be issued with a new card automatically under the European Settlement Scheme.

While third country nationals have their status recorded digitally on the European Settlement Scheme online portal accessible through Gov.UK, if they do wish to obtain another Biometric Residence Card to reflect their new immigration status, they must make a further application and re-submit their biometric data. Third country nationals are likely to need to do this in practice, given that their status is not linked to their passport, as is the case for European nationals.

Yet unfortunately the decision letter currently sent to applicants who have successfully obtained status is silent on this point and gives no guidance or a link to the appropriate page on the Home Office website where one can apply to update their Biometric Residence Card under the EU Settlement Scheme.

This lack of clarity raises practical issues. While we understand the Home Office plans to move the immigration status of all migrants to a digital only status, this has not yet happened, meaning third country nationals still need to evidence their status to carriers and border staff through a Biometric Residence Card when returning to the United Kingdom from abroad. Unaware that this is the case, we have heard reports of confusion by airline staff and border personnel, difficulty at the border and in several cases people left stranded outside the UK.

Third country nationals granted status under the European Settlement Scheme therefore do require a valid biometric card reflecting their current immigration status. Yet, if they fall into one of the scenarios outlined above, the process to update to a new card is unclear, costly (there is a Home Office fee of £75.20) and lengthy (the Home Office state these applications can take up to six months to be decided).

Instead, we believe all third country nationals should be given Biometric Residence Cards automatically up until the point that the Home Office can rely on digital immigration statuses for all migrants. These cards should be issued at the time the applicant is granted their new status, solving the practical difficulties faced by those third country nationals already holding at the date of application a valid Biometric Residence Card issued under the EEA Regulations.

If you require immigration advice in relation to the issues above, we can help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com

The UK’s new points-based immigration system

5th March 2020 By Ciera McCartney

On 19 February 2020 the Government published a policy paper announcing a new ‘point-based system’ for economic migration to the UK after Brexit, set to take effect from 1 January 2021.

With no future route announced for low-skilled or temporary workers, apart from seasonal workers and the youth mobility scheme, the focus of the new proposals is on skilled workers.

Skilled Workers

This new system will give a small amount of flexibility to sponsored work visas (currently what we know as Tier 2). It will require an applicant to gain a total of 70 points to be eligible to apply, with some characteristics tradeable and others not.

The three mandatory, non-tradeable requirements are those already required under the current Tier 2 system – a job offer from an approved employer sponsor, English language skills and a minimum skill level (although the skill level required will be reduced from level 6 (degree level) to level 3 (A-level). If an applicant meets these three requirements, they receive 50 points. However, the idea of ‘points’ here serves no real purpose, given that if the applicant does not meet these requirements, they will be unable to make up for this by gaining points for other attributes – rather, they will simply be ineligible to apply.

Where the flexibility, albeit minor, has been introduced is in the salary level required. While a minimum salary threshold will still exist, following the Migration Advisory Committee’s recommendation, the threshold will be reduced to £25,600 (it is currently set at £30,000). If a worker meets the three mandatory requirements and earns a salary of £25,600 or above, they will be awarded the required 70 points.

However, £25,600 will not be the absolute minimum. Instead, workers will still be able to meet the requirements for a visa while earning a lower salary if their job is on the shortage occupation list or if they are highly qualified.

People working in a job on the shortage occupation list or who have a PhD in science, technology, engineering or mathematics (STEM) will only need a minimum salary of £20,480. Being on this salary will not give the applicant any points, but if their job is on this list or they have a PhD in STEM, they will earn 20 points, allowing applicants on a lower salary to reach the required 70 points. Alternatively, someone who holds a PhD outside the STEM subjects, but the PhD is nevertheless ‘relevant to the job’, will be eligible to apply if they earn a salary of £23,040 or above. An applicant earning a salary between £23,040 and £25,599 will be awarded 10 points, which when combined with a relevant PhD providing another 10, will allow an applicant to meet the 70 points necessary to apply.

Despite these changes, this ‘point based system’ still closely resembles the system we currently have under Tier 2, and the three mandatory requirements prevent the flexible approach which is the trademark of other point systems, such as that found in Australia. Ultimately, you will still need a job to come to the UK, unless you are highly skilled and have been endorsed by the relevant and competent body (under what has now been dubbed the Global Talent route).

Other Changes

One of the most important changes, which is only briefly mentioned in the Government’s policy statement, is the removal of the resident labour market test. This test currently requires employers to advertise any job not on the shortage occupation list to ensure there are no suitable workers already living permanently in the UK. Combined with a suspension of the cap on the number of people who can come to the UK on the skilled worker route, these two changes will allow employers to offer as many jobs as they wish to applicants outside the UK, granted the person is able to meet the 70 points as explained above.

This is significant for employers, given that as of next year, both EEA citizens and non-EEA citizens will come under this new points-based system and employers will no longer be able to rely on the free movement of EEA workers. However, it also creates new challenges. While organisations currently have to be an approved sponsor to hire non-EEA citizens who do not have permission to work via another type of visa, from January 2021 anyone who wants to employ either EEA citizens or non-EEA citizens who are new to the UK will need a sponsorship licence.

Currently just over 32,000 organisations are registered as holding sponsor licences with the Home Office, and most of these are large companies. As the current process to become an approved sponsor is so complicated and expensive (see here for a full breakdown of fees), many SMEs take a decision not to register. However, in 2019, 1.4 million small and medium enterprises (SMEs) in the UK had employees, many of whom are likely to be employing Europeans and who will wish to continue to do so in the future. This means that in the near future, many more businesses will need to go through the process to become an approved sponsor.

While the policy paper states that the Government ‘recognise[s] that these proposals represent significant change for employers in the UK’, they fail to provide any further details on exactly how this will affect employers and what the costs will be. This is particularly concerning for the SMEs who currently rely on a European workforce and who will shortly find themselves required to participate in this new system.

More information on the licensing scheme is expected this autumn. In the meantime, if you require advice as either a worker, or a business wishing to become a sponsor, please contact us on contact@gryklaw.com or on +44 20 7401 6887.