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The British Nationality Act (BNA 1981) contains a good character requirement, which applies to certain applications for registration and naturalisation for those over 10 years old at the date of application.
The good character requirement previously only applied for naturalisation applications, but in 2010 this was extended to other routes to citizenship.
Definition of Good Character
The BNA 1981 does not provide a definition of good character, and therefore each application must be considered individually, and where needed applying the relevant balance of probabilities test. An Applicant will therefore want to carefully consider information to include in their application to demonstrate they meet the requirement. >
Generally the following key areas will be assessed and considered:
- International crimes, terrorism and other non-conducive activity;
- Financial soundness;
- Deception and dishonesty;
- Immigration-related matters;
This list is non exhaustive.
Home Office Good Character Requirement Guidance
The Home Office, Nationality: good character requirement, Version 1 published on 14 January 2019 provides instructions to caseworkers as to the application of the requirement. All Applicants should read this guidance to ensure they will accurately complete the application form and provide relevant documentation.
Interviews can be arranged and further information can be requested.
Children and Good Character Requirement
The current good character guidance relates to those applications made on or after 14 January 2019. Children are treated differently in that their best interests must be considered. The guidance ensures that relevant mitigation is taken into account “relevant to the child’s particular circumstances”. The application of good character in the case of children has received much publicity in recent years. The guidance currently reads: “You may exercise discretion where a child’s criminality would result in a lifetime refusal of any citizenship application (i.e. over 4 years in prison). In these cases the amount of time passed since the crime should be weighed up against any evidence of rehabilitation”.
Deception and Good Character Requirement
An Applicant is always expected to be as full and frank as they can be in an application.
“Concealment of information or lack of frankness will raise doubt about, and therefore reflect poorly on the applicant’s character”
The guidance continues:
“An application will normally be refused where there is evidence that a person has employed deception either:
- during the citizenship application process
- in a previous immigration application in the previous 10 years
It is irrelevant whether the deception was material to the grant of leave or not”.
It is therefore vital that the information submitted is accurate and no material facts are omitted.
It is important to recognise that when assessing whether deception was used and the period for which an application is unlikely to be successful, the 10 years will run from when it is discovered or admitted, not from the date deception was exercised.
Immigration Related Issues and Good Character
There are many immigration-related issues that need to be considered in making a nationality application, as individuals have acquired their indefinite leave to remain or settled status in a variety of ways, and some may have or have been accused of having an adverse immigration history at some point, however minor.
The guidance outlines considerations relating to an individual’s immigration history:
Deportation order: If an individual is or has been subject to a deportation order, they will normally fall to be refused.
Sham marriage/Civil partnership: An application will normally be refused where there is evidence that an individual has entered or attempted to enter into a sham marriage or civil partnership or a marriage or civil partnership of convenience. This applies to the 10 years prior to the application.
Abuse of English language or Knowledge of Life tests: If an individual has abused the system in this way in the 10 years prior to the application, they are likely to be refused.
False statements: Making false statement either in the application or during an interview, can mean an individual is liable to prosecution. This can result in a refusal, even if a prosecution is not pursued against someone. This also applies where a false statement has been made by a referee. An application can be refused, if the decision-maker considers the individual has been complicit.
Litigation debt: Litigation debt features in the grounds of refusal in part 9 of the Immigration Rules. Failing to pay litigation costs owed to the Home Office may result in refusal as it is may suggest a person is not of good character.
Breach of conditions: An application will normally be refused if, within the previous 10 years preceding the application the individual has not complied with immigration requirements, examples include having accessed public funds when not permitted and working in breach of conditions.
Overstaying: Where overstaying is the only indication that someone might not be of good character an application may still be granted where the overstaying was for 28 days or less prior to 24 November 2016, an application was made after 24 November 2016, and the application did not fall for refusal on the grounds of overstaying because an exception under paragraph 39E of the Immigration Rules applied, or the period of overstaying was not the fault of the Applicant, for example when a decision was quashed.
Illegal entry: If the individual entered the UK illegally, an application for citizenship will normally be refused if the illegal entry has occurred during the preceding 10 years. Decision makers will need to take into account Article 31 of the Refugee Convention, and whether appropriate to refuse a person granted refugee status on the grounds of illegal entry
Absconder: A person given temporary admission, temporary release, bail or release on a restriction order and has breached those conditions and has failed to comply may be refused.
Evasion of immigration control: An application for citizenship will normally be refused if there are grounds for believing that the person is currently, or has previously been, involved in an attempt to assist someone in the evasion of immigration control.
Illegal working: This may result in refusal. The guidance reads: “Illegal working causes damaging social and economic problems for the UK. It undercuts businesses that operate within the law, undermines British workers and exploits migrant workers”. In certain circumstances an asylum seeker may be given permission to work, but work is restricted. Undertaking other work may result in refusal.
Deprivation: If an individual has previously been deprived of citizenship where there was fraud, false representation for concealment of a material fact, a further application made within a period of 10 years from the date the deprivation order was issued will usually result in refusal.
Exceptional Grants of Citizenship
It is possible that an individual may be granted exceptionally. The caseworker will consider if there are any “mitigating circumstances”.
One example given is that a person’s criminal conviction is for an offence which is not recognised in the UK, for example homosexuality or membership of a trade union.
There is also discretion where there is “one single conviction but has lived in the UK all their life or since a very young age and the conviction was many years ago”.
All considerations whether to grant exceptionally must be approved by the Chief Caseworker and any proposal to grant a person who has been convicted with a sentence of 4 years or more imprisonment must be approved by ministers.
Contact our Immigration Barristers
For expert advice and assistance in relation to a nationality application, contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.