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Home Office publishes new guidance on ‘Good Character’ in citizenship applications

12th February 2019 By Andrew Jones

When applying to naturalise or register as a British citizen, most applicants aged 10 years or older must show that they are “of good character”. On 14 January 2019, the Home Office published new guidance for its caseworkers to determine whether an applicant for British citizenship meets the good character requirement. This post will address the changes to the guidance, which generally apply to all applications made after 14 January 2019.

General approach

The overall approach in the guidance remains broadly the same. The Home Office will assess whether an applicant has engaged in any of the non-exhaustive list of behaviours contained within the guidance within the previous 10 years; if so, an applicant “will normally” be refused. The Home Office follows strict guidance for those who have criminal convictions. It remains the case that anyone sentenced to four or more years in prison will normally see any application for citizenship refused. Those sentenced to more than one but less than four years in prison will normally see any application refused within 15 years of the sentence and those sentenced to less than one year in prison will normally be refused within 10 years of the sentence. Various specified non-custodial sentences will normally see an application refused within three years from the date on which the sentence occurred. Those who are considered “persistent offenders”, who have committed offences causing serious harm or are recorded on the sex offenders register will similarly see their applications normally refused.

Applicability

This guidance applies to any applicant aged over 10 years old. In 2017, the Independent Chief Inspector of Borders and Immigration raised concerns that the existing good character guidance was being applied to adults and minors in the same manner without giving due regard to the best interests of children. The Home Office also faced criticism in the media by campaigning groups, such as the Project for the Registration of Children as British Citizens and the Runnymede Trust, who argued that it is cruel and inappropriate to subject adults and children to the same guidance.

After committing to amend the good character guidance by December 2017, the Home Office has belatedly made limited changes to highlight that caseworkers must treat the best interests of children as a primary consideration as well as consider any mitigation relevant when making a decision on whether a child is of good character. The limited scope of the amendments have led campaigners to describe them as “irresponsible” and “in complete disregard” to the duty to safeguard the best interests of children, noting that “evidence suggests that it is racially discriminatory and effects vulnerable BME children and adults disproportionately”.

Immigration issues

The guidance also spells out further “immigration related issues” which will normally see an application refused. Many of these remain the same from the previous guidance, including cheating or using deception in English language and life in the UK tests, prosecution for false statements in support of a citizenship application or prompting their referee to make a false statement, illegal entry to the UK, assisting illegal migration, hiring workers without permission to work in the UK and deprivation of UK citizenship previously granted.

The new guidance spells out additional grounds of refusal. The first, and likely most significant, change is the introduction of the ground of ‘overstaying’. Anyone who overstayed their leave to remain by 28 days prior to 24 November 2016, or 14 days after 24 November 2016, now will normally see their application refused unless they can show that the period was not their fault. This, in essence, sees the guidance incorporate the same restrictions as the qualifying residence test for determining eligibility for naturalisation, but counts back 10 years from the date of application.

The guidance also introduces a ground of refusal for “absconders”. Any applicant who, in the previous 10 years, failed to report to the Home Office when required to the extent that the Home Office did not know their whereabouts will normally see their application for citizenship refused on grounds of absconding. The guidance on working without permission has also been subtly changed. Previously, the ground was only satisfied if the Home Office had “detected” the applicant working without permission. The new guidance simply states that if “the person has worked” then their application will be refused, which may include circumstances where an applicant is refused on this ground even if they were not encountered working.

The guidance is not more restrictive across the board, however. It includes sensible guidance in the section on illegal entry for those who entered as asylum seekers. There is no lawful route of entry for those seeking to come to the UK to claim asylum. The Refugee Convention states that refugees should not be punished for entering unlawfully so long as they travelled here directly from their country of origin and presented themselves to the authorities without delay. This has been incorporated into the guidance. One cause for concern is that the Home Office has interpreted “without delay” as meaning that the asylum claim was made within four weeks of entry. This is more concerning because the Home Office generally treats the date of the screening interview as the date the asylum claim was made. Practitioners and applicants will know that it normally takes approximately two weeks between an asylum seeker contacting the Asylum Screening Unit by telephone to request a screening interview and the interview being arranged. Applicants who entered unlawfully and were granted asylum will have to show that they contacted the Home Office within four weeks of entry, and any further delay thereafter was on the part of the Home Office.

Criminality

The guidance remains broadly the same with respect to criminality. There is further sensible guidance regarding the assessment of criminal offences committed overseas for conduct which is not a criminal offence in the United Kingdom (such as offences regarding sexuality, membership of a trade union or political party, etc.). The guidance now confirms that such convictions will normally be disregarded.

New guidance was introduced regarding those who have disseminated extremist views, such as inciting terrorist violence or fostering inter-community hatred. These provisions apply to applications made before the new guidance was introduced and will, as you might expect, normally result in the application being refused.

Debts

Outstanding NHS debts of over £500.00 or a failure to pay the Home Office litigation costs will also normally see applications refused. The guidance appears to indicate that the applicant will be given the opportunity to settle the debt without the application being refused.

Genuine mistakes

Finally, the guidance takes a more generous and sensible approach to applicants who have made genuine mistakes, either in their application or in claiming to be entitled to something which they genuinely and reasonably believed they were entitled to. Whereas before such applicant “will not normally be refused” the new guidance confirms that the decision-maker “must not refuse” them.

Overall, the guidance represents greater intolerance to immigration breaches arising in an applicant’s past. Since significant amendments to the good character guidance in December 2014, the Home Office approach has generally become more restrictive, treating a wider range of immigration matters as presumptive of bad character. Indeed, they are treated as strictly as prison sentences of less than a year. That said, practitioners should remember that despite its prescriptive nature, this “guidance” is not hard and fast rules. While ensuring that potential applicants are given appropriate advice on the likelihood of refusal under the new guidance so that they can make informed decisions on whether to proceed with an application, it is essential to prepare strong mitigating evidence and representations, especially relating to children, in respect of any good character breaches.

Insights into the public pilot of the EU Settlement Scheme

24th January 2019 By Isabella Mosselmans

Amidst the chaos and uncertainty surrounding the Brexit deal, the Home Office launched the public pilot of its EU Settlement Scheme on 21 January 2019. We used this opportunity to make an application for one of the EU citizens in our firm. The below provides some of our insights into the process:

Who can apply?

An application under the public beta phase of the EU Settlement Scheme can be made by:

A resident EU citizen with a valid biometric passport (but not a dual British/EU citizen); or
A resident non-EU citizen family member who has been issued with a biometric residence card

What do you need to apply?

In the first instance, you will need:

An Android phone
The EU Exit ID Document Check App
An email address
A telephone number
Your Biometric passport, if you are an EU citizen
Your Biometric Residence Card, if you are a non-EU family member
If you have one, your national insurance number
If you have one, your permanent residence document number

Depending on the outcome of the Home Office’s automatic checks, you may also need to provide additional evidence of residence. (This is discussed further below.)

How much does it cost?

There is no fee if you have a permanent residence card and have not been out of the UK for more than five years or indefinite leave to remain and have not been out of the UK for more than two years.

You will have to pay an application fee: £65 for adults and £32.50 for children.

However, Theresa May has announced that the fee will be waived when the Scheme is fully launched in March 2019, and that all those who pay a fee under the pilot phase of the Scheme will be reimbursed.

What types of status can you apply for under the Scheme?

There are two types of status that you can apply for under the scheme: settled status and pre-settled status.

EU nationals and their family members who have lived in the UK for 5 years should be given settled status. There are some categories of people who can qualify for settled status before 5 years, including, provided certain conditions are met, those who have ceased working due to retirement or incapacity, or the family members of deceased EU nationals.

Children under the age of 21 of EU nationals who have been granted settled status will also be given settled status, even if they have not themselves lived in the UK for 5 years.

Those who have not yet lived in the UK for 5 years will be granted pre-settled status for a period of 5 years. Once they have reached 5 years’ residence, they will be able to switch to settled status.

Application process

The first stage of the application process is carried out on the EU Exit ID Document Check App on an Android phone. This involves the following stages:

1. You are asked if you are an EU citizen, or family member of a non-EU citizen

2. You will be required to scan the ID page of your biometric passport or biometric residence card

3. You will be asked to enter your contact details including your phone number and email address

4. You will receive a text with an authentication code, which you will need to then be asked to enter into the app

5. You will be required to lay your phone on top of your passport so that the biometric chip can be scanned

6. You will be required to scan your face (while multiple flashing colours come onto the phone screen)

7. You will be asked to take a photo of yourself, more commonly known as a ‘selfie’ (which will be used on the digital document confirming your status if the application is successful)

8. You will be asked to confirm the information on your passport

To proceed to the second stage of the application, you will then need to log into the Gov.UK website using the details of your passport or biometric residence card. You will then be sent another code to your phone, which you will need to enter.

After this, you will be asked a series of questions about:

– whether you hold dual nationality or have had any other nationality in the past;

– your address, national insurance number and if you have ever been known by any other name;

– whether you have a document certifying permanent residence card or indefinite leave to remain; and

– whether you have any criminal records or have been involved in any extremist activity.

You will then be asked to choose and answer three security questions such as “What was the name of your first pet?” The Home Office state that they will use these security questions to confirm your identity if they need to contact you over the phone.

You will be required to complete a declaration stating that:

– You are in the UK.

– The information you have given is correct to the best of your knowledge.

– You are eligible and have been resident in the UK for either:-

– The period the Home Office data shows if you accept this; or

– The period you apply for, if you disagree with the Home Office.

– The photograph you submit of yourself is an accurate likeness of you.

The ‘consideration’ page:

Once you have completed the declaration page, you will then be taken to a ‘consideration’ page, which produces four possible results. Your result will be based on the automatic checks the Home Office have stated they are doing with HMRC, DWP and their own records. They are:

You’ll be considered for settled status (the tax and benefit history we could match you to indicate that you’ve been continuously resident in the UK for at least 5 years)
You’ll be considered for pre-settled status (the tax and benefit history we could match you to indicate that you’ve been continuously resident in the UK for less than 5 years)
We need more evidence of your residence (the tax and benefit records we could match you to indicate that you have not been in the UK the last 6 months)
We need more evidence of your residence (no records found)

What happens if your eligible for settled status, but taken to the ‘pre-settled status’ consideration page?

It is worth noting that it is very possible that even though you may be eligible for settled status, you will be told that “you’ll be considered for pre-settled status”.

It is not yet clear what needs to show up on your tax and benefit history during the automatic checks for you to be considered resident in the UK in any one particular year.

If you are taken to the pre-settled status ‘consideration page’, you will be asked “What do you want to do?”, and given two options:

Submit application for pre-settled status
Show I’m eligible for settled status

If you are taken to this page but believe you are eligible for settled status, you should be careful to ensure that you click the second option. You will then be asked to provide evidence for the years in which the automatic checks could not confirm your residence.

Strangely, you may be requested to provide:

This is clearly a “glitch” in the system, given that at the time of writing this blog we are only at the beginning of January. If you cannot provide evidence for the suggested years, you are also given the option to upload evidence for a different 5-year period.

Providing additional evidence

The additional evidence can be uploaded in 10 files of up to 6MB each.

The Home Office’s suggested additional evidence includes: ‘preferred evidence’ such as: annual bank statements showing payments received or spending in the UK (for at least 6 months in the 12 month period), P60s, P45s, council tax bills etc.; and ‘alternative evidence’ such as: dated payslips, utility bills, and mobile phone bills etc. which will be treated as evidence of residence for the period they cover. There is also a list of unacceptable evidence including: character references, photographs or greeting cards.

Certificate of application

Once you have submitted your application, you are immediately sent a digital letter via email known as a ‘certificate of application’.

Processing times

At the moment, the Gov.UK website currently takes you to a page which states “Current expected processing times will start to be published on this page shortly”

From our experience, it took 2.5 hours for someone who had already been issued with a permanent residence document, and 6 hours for someone who did not yet have a permanent residence document but had been in continuous employment for over 5 years. However, if you are required to submit further documentation, it is likely to take much longer than this.

What will you get if your application is successful?

If your application is successful, you will be sent a digital letter via email, which explains that your pre-settled or settled status in the UK can be confirmed online through the Home Office online checking service: ‘View and Prove your Rights in the UK’.

You will then be asked for the number of your passport or biometric residence card (used to make the application) and date of birth. You will also be asked to enter either your mobile number or email address (which you used to make the application) for them to send a code to. Once you insert the code, you get evidence of your status. This will have the ‘selfie’ you took on the EU Exit ID Document Check App on it.

More questions?

It remains to be seen how the Home Office will deal with more complex cases. If you are concerned about, or have any questions regarding the EU Settlement Scheme, or would like to book an initial consultation for tailored, individual advice, please do not hesitate to contact us.

Further changes to calculating “continuous residence” in the UK for indefinite leave to remain

11th October 2018 By Sonia Cala-Lesina

In January 2018, the Home Office brought in significant changes to the way in which “continuous residence” is calculated for the purpose of applications for indefinite leave to remain (ILR) in certain work categories including Tier 1, Tier 2, UK Ancestry and Representatives of an Overseas Business. You can find details in my earlier blog post, here.

This current blog post is a summary of the further changes which came into force on 6 July 2018. The advice in this blog is correct as of the date of publication, but – as demonstrated by this very issue – immigration law and procedures change very rapidly and we would urge readers always to check the current position before making an application to the Home Office.

The position pre-January 2018

In the past, continuous residence for applicants under the particular work categories listed above was considered unbroken where:

“the applicant has been absent from the UK for a period of 180 days or less in any of the five consecutive 12 month periods preceding the date of the application for leave to remain, except that any absence from the UK for the purpose of assisting with the Ebola crisis which began in West Africa in 2014 shall not count towards the 180 days…”

The position between January 2018 and July 2018

The changes of 11 January 2018, however, amended this definition so that continuous residence was instead considered unbroken where:

“the applicant has not been absent from the UK for more than 180 days during any 12 month period in the continuous period, except that any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas shall not count towards the 180 days…”

These changes were initially brought into force on 11 January 2018 with immediate effect, with no ‘grandfather clause’ or transitional provisions for people who had been relying on the previous rule, believing that it would continue to apply to them.

In addition to being impractical and unnecessarily harsh for the migrants affected, that change was also, in our opinion, unlawful with respect to those people who already had a relevant status and were relying on the old rule and now suddenly found that it did not apply, and that the way that they had been calculating their absences based upon the old rule might now prevent them from obtaining indefinite leave to remain.

The position since July 2018

On 6 July 2018, the Home Office amended the Immigration Rules relating to continuous residence again, this time for the better.

Perhaps anticipating forthcoming legal challenges to the retroactive nature of the changes, the Home Office introduced transitional arrangements and revised the Immigration Rules to state that, with respect to periods of entry clearance or leave to remain granted prior to 11 January 2018, the original rule of up to 180 days in the five consecutive 12 month periods would continue to apply, with the new rule only being applied to periods of leave granted after 11 January 2018.

The Home Office’s guidance of 6 July 2018 – which remains in force now (at the date of this blog) and which is available here – provides the following example for how absences are to be calculated for ILR applications:

“For settlement applications made from 11 January 2018, you must consider absences from the UK on a rolling basis, rather than in separate consecutive 12 month periods. If the applicants qualifying period includes leave granted before this date, any absences during that leave will be considered under the previous rules – in separate 12-month periods ending on the date of application.

For example: The application date is 30 June 2020. The applicant’s continuous period includes the following grants of leave:

one grant of leave from 1 July 2015 to 28 July 2018 – any absences during this grant of leave will be considered in separate 12-month periods, ending on 30 June each year
one grant of leave from 29 July 2018 to 30 June 2020 – any absences during this grant of leave will be considered on a rolling basis: you must not include any absences from the previous grant of leave when you assess this.”

I would urge anyone who had been expecting to qualify for ILR but who believed that they no longer qualified as a result of the changes to the Rules in January 2018, to look again at their absences, as they may qualify sooner than they thought.

For the sake of completeness, I note that the Home Office’s new guidance of 6 July 2018 continues to confirm that, in exceptional cases, ILR may be granted “outside the Rules” on a discretionary basis where the excess absences were due to “serious or compelling reasons”, but that work-related absences are not considered exceptional.

The position for dependent family members of Points Based System (PBS) migrants, including dependants of Tier 1, Tier 2, Tier 4 (General) and Tier 5 (Temporary Worker) migrants, also remains the same as in my earlier blog post – namely, that absences from the UK during periods of leave granted before 11 January 2018 will not be taken into account, but for periods of leave granted after 11 January 2018, PBS dependants will be subject to the new Rules and will need to ensure that their absences do not exceed 180 days in any 12 month period.

One final point to note is that the guidance no longer provides that ILR can be granted outside the Rules on the basis that the changes have caused the applicant “exceptionally harsh consequences”; this exception has been removed since July, presumably as a result of the fact that there are now transitional provisions in force so applicants have been given notice of the new Rules.