24 Oct 2016, 02 mins ago

In an almost unpublicised move, the Home Office has made amendments to its guidance for assessing good character in nationality applications. The guidance applies to all decisions taken on or after 11 December 2014, and is available here.

The requirements to be met for naturalisation are contained in Schedule 1 to the British Nationality Act 1981, and include a requirement that the applicant is of good character. The meaning of ‘good character’ is not explained in the Act itself but is instead contained in guidance published by the Home Office.

Under the previous guidance, the most obvious indicator that a person was not of good character was a history of criminal convictions. Other factors included: suspected criminal activity; war crimes and terrorism; lack of financial soundness; notoriety; and a history of deception or dishonesty. Failure to satisfy these tests would usually lead to a prohibition on good character grounds for varying periods of time depending on the circumstances. All of these factors remain in the new guidance.

Section 9 of the guidance deals with immigration related issues. Most of these factors normally lead to a 10 year bar on the applicant being able to satisfy the good character test. Under the previous guidance, immigration related issues included participation in a marriage of convenience; cheating in the English Language and/or Knowledge of Life tests; reliance upon false statements in applications; hiring illegal workers; and previous deprivation of citizenship. Again, all of these factors remain in the new guidance.

However, the previous guidance specifically stated that an application would not normally be refused where the person had a history of evading immigration control themselves, particularly where there was no other evidence to cast doubt on their character. This has been changed in the new guidance, which adds the following criteria for refusing applications on good character grounds:

” 9.5 Illegal EntryIn circumstances where an applicant entered the UK illegally, an application for citizenship should normally be refused for a period of 10 years from the date of entry, if it is known. If it is not known, the period of 10 years starts from the date on which the person first brought themselves to or came to the attention of the Home Office.

9.7 Evasion of immigration controlThe decision maker will normally refuse an application if within the 10 years preceding the application the person has not been compliant with immigration requirements, including but not limited to having:

  • a. failed to report
  • b. failed to comply with any conditions imposed under the Immigration Acts
  • c. been detected working in the UK without permission “.

Illegal entry

Other than refugees, most applicants for naturalisation will not be affected by the changes to the good character guidance, but some will still be caught by the changes. This would include individuals who have initially entered illegally but have subsequently obtained a form of leave to enter or remain that allows them to apply for naturalisation after less than 10 years in the UK. For instance, some illegal entrants later marry British citizens, and then either obtain leave to remain as a partner in-country, or leave the UK and are granted leave to enter the UK from abroad. Such a person would be able to apply for naturalisation 5 or 6 years after having been granted leave. However, because of their historic initial illegal entry, they would be prevented from succeeding in their application until more than 10 years has passed since their illegal entry.

The applicants most likely to be affected by the changes are refugees. Many refugees are unable to leave their countries through normal channels or do not have any valid travel documents. For this reason, many persons who subsequently obtain refugee status enter the UK illegally, either surreptitiously, eg in the back of a lorry; or by use of a false passport to pass through immigration control before claiming asylum. The Home Office also often declares asylum seekers to be illegal entrants even where they have passed through immigration control using a valid passport if they told the immigration officer that they were coming here for another reason.

Refugees can currently naturalise within six years of being granted asylum. However, a refugee who entered illegally will probably now have to wait up to 10 years before being able to naturalise.

The new guidance is possibly in breach of the Refugee Convention itself in that it appears to penalise refugees on account of their illegal entry. Article 31 of the Convention states:

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

Furthermore, the new guidance will make it more difficult for many refugees to naturalise, whereas Article 34 of the Convention requires States to “as far as possible facilitate the assimilation and naturalization of refugees” and “make every effort to expedite naturalization proceedings”.

Indeed, Article 31 provides the basis of a statutory defence to some immigration offences. Under section 31(1) of the Immigration and Asylum Act 1999 it is a defence for a refugee charged with such an offence to show that he has come to the United Kingdom directly from a country where his life or freedom were threatened (within the meaning of the Refugee Convention) and that he has:

  • a. presented himself to UK authorities without delay;
  • b. showed good cause for his illegal entry or presence; and
  • c. made a claim for asylum as soon as was reasonably practicable after his arrival in the UK

Thus we are now left with the absurd situation where a refugee who entered illegally may then have been charged and acquitted of an immigration offence on the basis that he has shown good cause for his illegal entry and presence; he may also have obtained refugee status after an appeal before an Immigration Judge who might have specifically found that his credibility was not damaged by his illegal entry; but he is then refused naturalisation on the basis that his illegal entry shows that he is a person who is not of good character.

It should be noted that the guidance is discretionary and it is open to the Home Office to grant naturalisation even where the guidance says they should normally be refused. In the example above therefore, it may be possible to persuade the Home Office that the findings of a criminal court and an Immigration Judge would justify a departure from the usual rule. However, in most instances, it is unlikely that the Home Office would agree. As the applicant would already possess indefinite leave to remain in the UK, they would probably argue that there would be no real prejudice caused by the delay in naturalisation, despite the fact that such delay would deprive the applicant of the benefits of citizenship of the European Union.

Evasion of immigration control

The new guidance relating to evasion of immigration control also has the potential for further draconian effect. In particular, “evasion of immigration control” has been defined so broadly that it could encompass administrative errors on the part of applicants, and also includes conduct right up until the date of application.

The guidance specifically includes failure to report within the 10 years preceding the application as a reason for finding that the applicant is not of good character. This potentially means that simply forgetting about a reporting appointment could block naturalisation for the next 10 years, even if at the time it is accepted to be a genuine error. Furthermore, failure to comply with any conditions imposed when leave is granted could also lead to a 10 year bar upon naturalisation. This could, for instance, include forgetting to obtain a variation of a condition that the applicant must live at a specific address until after he has moved. Most right-minded people would not perceive either of these examples to be “evasion of immigration control”. It is also important to note that a breach committed the day prior to an application for naturalisation would act as a bar for 10 years subsequently.

It is therefore now more important than ever for all persons subject to immigration control to take extra care to ensure that they are fully aware of any conditions placed upon their entry or leave and that they make sure that they comply with those conditions to the letter to avoid any potential future problems with naturalisation.