News and updates | Wesley Gryk Solicitors LLP

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.

Home Office triple fines for employing and housing migrants without lawful status

11th August 2023 By Beatrice Windsor

On Monday 7 August, the government announced that from early 2024, they will be substantially increasing maximum fines for anyone found to be employing those without permission to work in the UK. The maximum fine per worker for a first offence of illegal working is currently £15,000 and will be tripled to £45,000 per worker. For repeat offences, the maximum fine will also be tripling from £20,000 to £60,000 per worker.

There will also be increases in the maximum fines for landlords found to be renting accommodation to people without lawful immigration status. The maximum fine for hosting a lodger will sharply increase to £5,000 per lodger, up from £80. The maximum fine for illegally housing tenants in rented accommodation will increase to £10,000 per occupier – ten times the current maximum fine of £1,000.

Why is this happening?

The government have said that illegal working is a significant “pull factor” for illegal migration, and that this fine increase will help deter small boat crossings.

How do you prove your right to work or rent?

There is a complex system whereby employers and landlords can check specific documents. For those with digital status, they can apply to the Home Office to verify somebody’s immigration status.

British and Irish citizens

If you are a British or Irish citizen, then you would normally prove your right to work in the UK by showing your employer your passport.

Non British or Irish citizens

If you are not a British or Irish citizen, how you prove your permission to work in the UK will depend on the type of immigration status you hold:

Biometric Residence Permit and Biometric Residence Card holders

Previously, those with Biometric Residence Permits (BRPs) and Biometric Residence Cards (BRCs) could present these cards to show their immigration status. With an increase in the use of technology for immigration checks, holders of these cards must now prove their right to work online, by sending their employer a share code. Employers cannot rely on sight of BRPs and BRCs for new right to work checks.

Pending immigration application or appeal

If you have an outstanding application to extend your lawful residence or are awaiting the outcome of an appeal, you may still have permission to work in the UK. Although you may not have a valid immigration document, your employer can use the Employer Checking Service to confirm you have ongoing permission to work. The results of the check either come back positive or negative, and are valid for six months. If your immigration status is not resolved within that time, your employer can make a repeat check through the online system and continue to employ you.

How we can help

If you do not have the immigration documents that we have listed above to prove your right to work or your evidence is in paper format and you want to update it, we may be able to help. Please do not hesitate to contact us at enquiries@gryklaw.com or on 020 7401 6887.

Home Office announces steep application fee increases

3rd August 2023 By Andrew Jones

On 13 July 2023, the government announced that it is going to introduce a massive increase to the cost of immigration applications and the Immigration Health Surcharge (IHS). The government stated, and the Home Secretary confirmed, that the reason for these increases is to cover pay-rises for certain public sector workers. It is not clear what the connection is between visa application fees and public sector pay, nor whether it is even lawful to increase fees on this basis.

We still do not know when these increases will be introduced, although we expect it to be at some point in the autumn. The exact figures have not been announced, but we know that the cost of work and visit visas will increase by 15%, while the fees will increase by 20% for most other visas. The IHS will be increasing from £624 per year to £1,035 per year.

This is a staggering hike in the cost of applying for visas and leave to remain. The cost of the IHS, in particular, has increased exponentially. As recently as the start of January 2019, the IHS cost £200 per year, meaning that in less than five years the cost will have increased more than fivefold.

These increases place migrants already in the United Kingdom in a very difficult position. An applicant who applied in-country for a partner visa on March 2017 would have paid a total of £1,311: £811 for the application fee and £500 for the IHS. Assuming this person is applying to extend on the 10-year route to settlement, their next application looks set to cost them more than £3,845. The overall cost to families with more than one applicant, especially on visas such as the Skilled Worker or Global Talent routes where they may apply for five years at a time, will be eye-watering.

Who needs to act now?

Migrants who already have leave to remain will, for the most part, need to wait until near to where their leave is expiring before applying for further leave. Whether they will have to pay these higher fees will simply be a matter of when they are able to make that next application.

However, there will be people who can take action now to apply under the current fees. Overstayers looking to regularise their status, or applicants with valid leave looking to switch into a different visa category, would be well advised to apply as soon as possible. Those looking to apply on routes which require a prior endorsement, such as Global Talent and Innovator Founder, should take steps as soon as possible to apply for that endorsement. On the Global Talent route, it is possible to apply for the endorsement and leave to remain simultaneously, which may be worth the gamble to avoid paying higher fees.

What if you cannot afford the fees?

Migrants looking to apply for leave based on their human rights (in particular, those applying as a partner or a parent) may be eligible for a fee waiver. To be eligible for a fee waiver, an applicant simply needs to show that they cannot afford the application fees, or that if they did pay for the fees then they would not be able to afford their essential livings costs and/or doing so would harm their child’s wellbeing.

A likely side-effect to these increased fees will be that a large group of applicants will become eligible for a fee waiver on the basis that they cannot afford the new fees (but may have been able to save up to afford the current fees).

Conclusion

If you would like assistance applying for leave before the fees increase, or need advice on your eligibility for a fee waiver, feel free to make an enquiry.

Recent Issues with British Passport Applications

13th July 2023 By Katie Dilger

Since October 2022, many passport applications have been put on hold due to the case of R (Roehrig) v SSHD [2023] EWHC 31 (Admin). This was the case in which the High Court held that EEA nationals exercising free movement rights in the UK prior to 2 October 2000, but who had not been granted indefinite leave to remain, were not settled for the purposes of the British Nationality Act 1981. See our previous updates from March and April 2023.

The good news is that, following the British Nationality (Regularisation of Past Practice) Act 2023 coming into force on 29 June 2023, passport applications from this cohort are now being processed.[1] Applicants whose cases had been put on hold have already started to receive their British passports.

While this issue has, it seems, now been resolved, we are increasingly seeing British citizens who have a second nationality having their applications put on hold. This is due to HM Passport Office’s current policy on aligning names on foreign documents. The policy states:

“Customers may send us a passport application in a name that does not match their foreign documents. Unless it meets one of our exceptions, we expect customers to change the name on their foreign document, so it matches the name on their passport application, before they send their application to us.”

This policy catches out many British citizens who are dual nationals, but whose non-British passport is in a slightly different name. This includes those who have renewed their British passports several times before without previously encountering any issues.

HM Passport Office’s rationale for this is that it:

“Must protect the security of the British passport (by preventing, disrupting and identifying those who change their name to commit crime or avoid detection)
cannot accept documents that allow a customer to apply for a foreign passport, travel document or identity document in a different name”.

In many cases, an applicant will be able to remedy the situation by obtaining a new foreign passport in the same name as their British passport. However, this is not always possible or appropriate. HM Passport Office recognises this, and, in certain limited situations, it will issue a British passport where the holder also has a foreign passport in a different name. This includes where the other country imposes restrictions on name or gender changes or limits the number of characters that can be used in the name fields in a passport. HM Passport Office also recognises that there may cultural naming conventions which dictate how a name is written in a non-British passport. For example, some countries have rules on name order or requirements that a passport must show the family names of both parents. In these circumstances, HM Passport Office is likely to issue a British passport with an observation that the person also holds a second passport in a different name.

If you are affected by any of the issues addressed above and would like expert legal advice, please do not hesitate to contact us at enquiries@gryklaw.com or on 020 7401 6887.

[1] See NEWS AND UPDATES – prcbc

The EU Settlement Scheme – where are we now?

10th July 2023 By Alison Hunter

As the EU Settlement Scheme approaches five years date its start date, it is an interesting point to take stock of what has happened and what is currently happening.

As of 31 March 2023, the EU Settlement Scheme had received 7.2 million applications, of which roughly 50% were granted settled status and just under 40% have been granted pre-settled status. The balance were refused, withdrawn, void or invalid applications.

For those who were granted pre-settled status early on in the process, and the first of those would have been in August 2018, their five years of this status will shortly be coming to an end. Had it not been for the judicial review brought by the IMA, to remain legally in the United Kingdom, they would now have had to apply for settled status. As we know from this case (which you can read more about on our previous blog), the Home Office has conceded that applicants with pre-settled status do not need to apply for settled status. However, as of yet, they have not provided any guidance or any indication of what they intend to do with people in this situation. It is therefore difficult to assess how easily these people are going to be able to prove specific rights that they have, such as the right to work or right to benefits or how they will show a landlord that they are legally residing in the United Kingdom if they do not apply for settled status. Our current advice therefore remains that people should apply for settled status before their pre settled status expires. We know that this will give our clients the ability to prove their immigration status. Obtaining settled status is also still going to be essential if somebody wants to naturalise to become a British citizen in the future.

One of the other difficulties that we are aware are the significant delays in administrative reviews. An administrative review is a way of challenging an initial decision made by the Home Office. Unfortunately, these are currently outstanding at the Home Office for roughly a year, causing clients to be left in limbo without knowing whether or not they will be able to gain status in the United Kingdom. Many clients may want to look at a different way of resolving their immigration issue such as reapplying and we can discuss that option with you if you find yourself in this situation.

Although the Home Office initially stated that the EU Settlement Scheme was to close on
30 June 2021 for new applicants, they have since then been accepting late applications. In general, the Home Office have taken a very reasonable view of how to deal with these cases and have not forced clients to provide detailed reasons as to why the application is late. However, we are finding that clients, for example who are not living in the United Kingdom but have a historical five-year period of residing here and have returned within five years of leaving the United Kingdom, are routinely having their applications refused. Our input has been used successfully to have such cases overturned.

If you are affected by any of the issues addressed above or anything else in relation to the EU Settlement Scheme and would like expert legal advice, please do not hesitate to contact us at enquiries@gryklaw.com or on 020 7401 6887.