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.
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.
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”.
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.
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.
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.
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.