- Home Office guidance: what is indicative of “bad character”?
- Criminal convictions
- Do driving and parking offences have to be declared for a British citizenship application?
- Do old or “spent” convictions have to be declared?
- War crimes, terrorism and other activity contrary to the public good
- Financial soundness
- Deception or dishonesty
- Overstaying, illegal entry and breaches of immigration law
- Non compliance with the Worker Registration Scheme
- Dealing with the guidance in practice
- Who does not need to meet the good character requirement?
Anybody over the age of ten who applies for registration or naturalisation as a British citizen needs to meet the so-called “good character requirement”. This is a mandatory requirement set out in Schedule 1 of the British Nationality Act 1981. Where a person is deemed by the Home Office not to be “of good character” then his or her application for citizenship will be refused.
There is no further definition of what is meant by “good character” in the British Nationality Act 1981. However, there is guidance available from the Home Office as to what is likely to be considered behaviour that indicates a person is not “of good character”. We can also look to the very few cases that have reached the courts on this issue.
Home Office guidance: what is indicative of “bad character”?
The current guidance as to what factors the Secretary of State will consider when assessing a person’s good character is set out in nationality policy guidance document Good character requirement.
The guidance runs to 29 pages and includes a long, non-exhaustive, list of issues which would, in the Secretary of State’s view, indicate that a person is not of good character and would therefore lead to refusal.
The list includes issues which are relatively uncontroversial and to be expected, such as war crimes and terrorism. It also includes more questionable factors when it comes to deciding whether a person is of “good character”, including issues of bankruptcy and liquidation.
The sections of the guidance which cause the most concern to applicants, partly because it is not always clear when they do or do not apply, are those in Section 8 on deception and dishonesty and in Section 9 on breaches of immigration law.
Unsurprisingly, previous criminal convictions will often lead to an application for naturalisation or registration being refused on good character grounds. A series of “tariffs” or periods of exclusion from qualifying for British citizenship are set out in the guidance:
|Four years’ or more imprisonment||Application will normally be refused, regardless of when the conviction occurred.|
|Between 12 months’ and four years’ imprisonment||Application will normally be refused unless 15 years have passed since the end of the sentence.|
|Up to 12 months’ imprisonment||Applications will normally be refused unless ten years have passed since the end of the sentence.|
|A non-custodial sentence or other out of court disposal that is recorded on a person’s criminal record||Applications will normally be refused if the conviction occurred in the last three years|
It is the entire sentence imposed on an individual which will be looked at, not the actual time spent in prison. A suspended prison sentence will be treated as a “non-custodial offence or other out of court disposal that is recorded on a person’s criminal record”, unless the sentence is subsequently ‘activated’.
Sentences imposed overseas will normally be treated as if they had been imposed in the UK. However:
the decision maker has discretion to disregard a conviction for behaviour that the UK Government considers legitimate; for example homosexuality or membership of a trade union.
The guidance also contains detailed information as to what constitutes “out of court disposals”. They include cautions, warnings, community sentences, hospital orders and fines. They do not include Fixed Penalty Notices; however, these may be relevant when making the overall assessment as to whether a person is of “good character” (see below).
The table is not the be-all and end-all when it comes to assessing good character. The decision maker is expected to make an overall assessment as to the character of the applicant. This means that, in some cases, the “overall pattern of behaviour”, or the harm caused by an offence:
may justify refusing an application, even if the sentences imposed would not normally in themselves be a reason for refusal in line with [the table above].
The decision-maker will take into account factors such as the number of convictions, the age of the applicant at the time and the time period over which those offences were committed.
In some cases, an applicant may be refused even when they have never been charged or convicted:
The decision maker will take into account the nature of the information and the reliability of the source. Where there is firm and convincing information to suggest that a person is a knowing and active participant in serious crime (e.g. drug trafficking), the application will normally be refused.
Finally, one should always remember that it is important to declare all criminal convictions, including pending ones. An applicant who fails to do so may see their application refused not only on the ground of the criminal conviction, but also on the ground of deception (see below).
Do driving and parking offences have to be declared for a British citizenship application?
The short answer is that it is important to disclose all convictions and to err on the side of caution by over- rather than under-disclosing. Where a conviction is a very minor one, such as a minor driving conviction, there is more danger from failing to disclose and being accused of deception than from refusal on good character grounds because of the conviction itself. As President Nixon found to his cost, the cover up can be worse than the crime itself.
Fixed Penalty Notices are not always technically criminal convictions. It depends how an incident was treated by the police at the time. However, we have already seen that the good character requirement for naturalisation is not just about criminal convictions, it is also about wider behaviour.
It is not completely clear from the naturalisation application form, Form AN, whether Fixed Penalty Notices have to be disclosed. As a note to question 3.1 (“Have you been convicted of any criminal offence in the UK or any other country?”) the form states:
You must give details of all criminal convictions. This includes road traffic offences (including all drink driving offences). Fixed Penalty Notices (such as speeding or parking tickets) do not form part of a person’s criminal record and will not be considered in the caseworker’s assessment of character unless:
• the person has failed to pay and there were criminal proceedings as a result; or
• the person has received numerous fixed penalty notices.
This does not explicitly say whether Fixed Penalty Notices need to be disclosed although it is implied. The accompanying Guide AN document is much clearer, however. At section 3 on good character it states:
Fixed penalty notices (such as speeding or parking tickets) must be disclosed, although will not normally be taken into account…
Very serious road traffic offences such as drunk or dangerous driving will always count as criminal convictions and must be disclosed in an application for naturalisation.
Do old or “spent” convictions have to be declared?
Full guide to the requirements and process for naturalising as a British citizen, including where the Home Office will show flexibility and where not. Case studies included throughout.View Now
Under the Rehabilitation of Offenders Act 1974, some criminal convictions become “spent” after a certain period of time. This means that the offence does not have to be declared for most purposes, for example when applying for employment or insurance. The period of time before an offence varies with the seriousness of the offence.
However, criminal offences never now become spent for the purposes of immigration and nationality law. The law on rehabilitation for immigration and nationality purposes was changed by section 140 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 with effect from 1 October 2012.
This means that all convictions, including spent convictions, have to be declared in an application for naturalisation. The guidance on the good character requirement confirms this:
Certain immigration and nationality decisions are now exempt from section 4 of the Rehabilitation of Offenders Act 1974. This means that it does not matter whether a conviction is “spent” when assessing good character provided the application was made in England, Wales or Scotland.
This is not the case, however, for applicants who reside in Northern Ireland. These applicants should refer to Annex D2 of the guidance. Arguably, though, even applicants who reside in Northern Ireland should declare all of their convictions, including spent ones. The form simply asks “Have you been convicted of any criminal offence in the UK or any other country?” and does not specify that only unspent convictions should be declared.
It is very important that applicants declare all their convictions, including driving offences and spent convictions, to avoid seeing their application refused on the basis of deception (see below).
War crimes, terrorism and other activity contrary to the public good
Most of the section in the nationality policy guidance dealing with war crimes and terrorism is blanked out, so we do not know exactly what are the instructions to decision-makers relating to these cases. What we do know of policy in such cases is reflected in our full ebook on naturalisation.
When deciding on an applicant’s good character, the Home Office may also look at their “financial soundness”, which includes
- liquidation of a company of which the applicant was a director
- debt; and
- non-payment of council tax (where the person unreasonably failed to pay or committed fraud in an attempt to pay less).
Bankruptcy or liquidation will not be automatic reasons for refusal, except where fraud has occurred. In all other cases, the decision-maker will look at the level of culpability of the applicant in the events which led to bankruptcy or liquidation and the timing of the bankruptcy or liquidation. In particular:
The decision maker will determine whether the person was reckless or irresponsible in their financial affairs leading to their bankruptcy or their company’s liquidation. If so, it is likely to be reflected by a disqualification being obtained. A disqualification order or undertaking prevents a person from being a Director or taking part in the management of a limited company for a period of up to 15 years. Details of all disqualifications are on the Companies House website. Where this is the case, the decision maker will normally refuse an application.
Similarly, debt in itself will not normally be a reason for refusal,
However, where a person deliberately and recklessly builds up debts and there is no evidence of a serious intention to pay them off, the decision maker will normally refuse the application.
Deception or dishonesty
Present or past alleged deception or dishonesty by an applicant is one of the most common reasons for refusal on good character grounds. In practice, a decision maker will normally refuse an application where the applicant has used deception
- in their application for British citizenship
- a previous immigration application; or
- in their dealings with other departments of the government, including in relation to benefits.
Where deception was used in a previous immigration application, it does not matter whether the deception was material to the grant of leave or not. Even if the deception was not relevant a later application for naturalisation will still normally be refused.
Where the deception relates to a previous immigration application, an application for British citizenship will be refused for ten years starting with the date on which that deception was discovered or admitted.
When the deception relates to the current application for citizenship any subsequent application for citizenship will be normally be refused if it is made within ten years from the date of the refusal unless the failure to disclose was unintentional and concerned a one-off non-custodial sentence or out of court disposal.
Where deception is committed in an application for naturalisation or registration and is not uncovered at the time of the application, the Home Office has a power to later deprive a person of their British citizenship. This has occurred in some cases involving, for example, successful false asylum claims leading to a grant of a settlement and eventually to naturalisation.
Overstaying, illegal entry and breaches of immigration law
In December 2014 the Home Office introduced new guidance on good character and started to refuse naturalisation applications on the basis of poor previous immigration behaviour. This is now one of the most common reasons for refusal on the basis of good character.
Under this amended guidance a decision-maker will normally refuse an application if, in the ten years prior to the application, an applicant:
Under this amended guidance a decision maker will normally refuse an application if, in the ten years prior to the application, an applicant:
- Entered into a false marriage or marriage of convenience. The ten years will start running from when the deception is discovered or admitted.
- Cheated in a Knowledge of Life in the UK test, or an English language test. Again, the ten years start running when the deception is discovered or admitted.
- Was prosecuted for making a false statement in an application.
- Was complicit in deception on the part of referees.
- Entered the UK illegally. The ten-year period starts running from the date of entry if known, or otherwise the date the applicant brought themselves or came to the attention of the Home Office.
- Evasion of immigration control in the last ten years, including but not limited to having:
- failed to report
- failed to comply with any conditions imposed under the Immigration Acts
- been detected working in the UK without permission
- Was deprived of their citizenship because of fraud, false representation or the concealment of material fact. The ten-year period will start running from the date the deprivation order was issued.
This mainly seems to be relatively straightforward, except the paragraph on “evasion of immigration control”. Not every past breach of immigration laws triggers a refusal. From experience, it appears that the Home Office does not consider a period of overstay in and of itself as “evasion”.
There is in effect a permanent exclusion from ever applying successfully for British citizenship in cases where the applicant:
- is currently, or has previously been, involved in an attempt to assist someone in the evasion of immigration control
- is or has hired illegal workers
- was deprived of their citizenship on “conducive to the public good” grounds (e.g. because they committed a serious criminal offence)
It is important to remember that, in addition to the factors listed above, the Secretary of State retains the very wide discretion to refuse an application whenever she is not satisfied that the application is of good character. The guidance confirms that:
If the person does not clearly fall into one of the categories outlined above but there are doubts about their character, the decision maker may still refuse the application.
Non compliance with the Worker Registration Scheme
There is no specific mention of non-compliance with the Worker Registration Scheme (WRS) for A8 and A2 EU nationals in the nationality policy guidance on good character. However, there have been concerns that refusals may occur on this basis in practice.
A separate issue can arise where an A8 or A2 national who did not comply with the WRS applies for a permanent residence document. Work not in compliance with the WRS is considered by the Home Office to be unlawful and not to count towards permanent residence. Where this is the case and the applicant is relying on a period of employment which was non-compliant with the WRS in order to qualify for permanent residence the applicant might be refused permanent residence. This would mean the applicant did not yet qualify for naturalisation because the residence requirements would not be satisfied.
Dealing with the guidance in practice
Firstly, it is important to note that the refusal of an application for British citizenship does not by itself prejudice an applicant’s current immigration status or future applications for British citizenship. In other words, an applicant who submits an application for British citizenship which is refused will retain his or her current immigration status. He or she will also be free to submit a new application for British citizenship in the future, if or when he or she meets the good character requirement.
The exception to this rule is where the reason for refusal is that the applicant has used deception in the current application. In this case, any new application will be refused for a period of ten years.
In many cases it might well be that the practical advice is to wait until a person has a straightforward application. For example, in the case of a person who has overstayed and will struggle to show that they did not work during that time, it might well be that they will want to wait until ten years have passed since the end of their period of overstay. This is especially true with individuals with limited financial means, who will be unwilling to risk spending such large amounts of money.
At the time of writing, in October 2017, an application for naturalisation costs £1,282, out of which only £80 (the administrative cost for the citizenship ceremony) will be refunded if the application is refused.
However, some potential applicants may be more willing to take risks and be willing to try submitting an application, even when it is likely that it will be refused and they will need to challenge it. Importantly, the good character requirement guidance is guidance only. None of the grounds for refusal in the guidance are mandatory as such. It is always possible to put arguments forward to rebut the presumption of refusal.
Granting in exceptional circumstances despite poor character
According to the Home Office guidance, an application for British citizenship will only be granted in very limited circumstances when there are factors which would bring the application to normally be refused. In particular, the guidance says
There may be exceptional cases where a person will be granted citizenship even where they ordinarily would fall to be refused.
Exceptions will generally fall into one of the following categories:
- the person’s conviction is for an offence which is not recognised in the UK and there is no comparable offence. See section 2.4 – Non-UK Convictions; or
- the person has one single non-custodial sentence, it occurred within the first 2 years of the 3 (i.e. the person has had no offences within the last 12 months), there are strong countervailing factors which suggest the person is of good character in all other regards and the decision to refuse would be disproportionate
This suggests a very strict interpretation of the guidance, which is arguably incorrect. Judges have suggested that the Secretary of State should apply the guidance in a more flexible way.
However, there is a marked difference between the theory and practice of law. Realistically, in most cases the outcome of an application for naturalisation will be whatever the Home Office decides, and the Home Office case worker deciding the application will almost always follow and apply the guidance. In some cases it may be feasible as a matter of law to bring a legal challenge by way of an application for judicial review. However, very few rejected applicants will want to go to the expense and inconvenience of pursuing a legal challenge.
Taking into account positive evidence of good character
As we have seen, the nationality policy guidance mainly guides officials as to when to refuse applications on bad character. The guidance does little or nothing to encourage officials to take into account evidence of positive good character. There are however relevant High Court cases on this issue, which are analysed elsewhere on Free Movement and discussed in our full ebook.
Refugees and illegal entry
Refugees should not be penalised for entering the UK unlawfully. In a letter of March 2015, then Immigration Minister James Brokenshire confirmed that:
The instruction is that applications should “normally” be refused as there will, of course, be circumstances where it would not be appropriate to do so. One such example is where an individual enters the UK illegally, but is subsequently granted refugee status. Section 31 of the immigration and Asylum Act 1999 Act and Article 31 of the Refugee Convention provide a defence against prosecution for certain offences committed prior to a grant of Refugee Status where the individual showed good cause for his illegal entry or presence and brought themselves to the attention of the authorities without delay.
Similarly, where an individual enters clandestinely, but presents themselves to the authorities within a reasonable time period and has their asylum claim accepted, an application will not be refused solely on the grounds of the initial illegal entry.
Unfortunately, experience suggests that this exception is too often not applied by officials, and many refugees are granted naturalisation only after challenging an initial refusal by way of an application for judicial review.
In addition, even when the exception is applied, it is done very strictly. As such, those who did not claim asylum soon enough do not benefit from the exception. At the time of writing the author was not aware of any case to have reached the courts on this point.
Who does not need to meet the good character requirement?
Finally, it is worth remembering that two categories of individuals are exempt from meeting the good character requirement. They are
- individuals who apply under the statelessness provisions in Schedule 2 of the BNA 1981, which is directed at those who would otherwise be left stateless
- individuals who apply under section 4B of the Act, which is directed at those who have no other citizenship.
Following the Supreme Court decision in R (Johnson) v Secretary of State for the Home Department  UKSC 56 an individual who would automatically have been born British before 1 July 2006 but for the fact his or her parents were unmarried and it was his father rather than his mother who was British is also exempt from the good character requirement. The Supreme Court held that those who had been denied British citizenship by this historic legislative bias were entitled to register as British even if they were of bad character.
This post is an extract from the Free Movement ebook “Naturalising as a British citizen: a guide“. The ebook contains worked examples of common good character issues in naturalisation applications, as well as covering the rest of the naturalisation criteria. It is available to download free to members, or for £9.99 for non-members.