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NATURALISATION AND CRIMINAL CONVICTIONS

Posted by: Gherson Immigration

THE BRITISH NATIONALITY ACT 1981 AND THE 'GOOD CHARACTER' REQUIREMENT

Poloko Hiri v Secretary of State for the Home Department [2014] EWHC 254 (Admin)

Applicants for naturalisation who have minor criminal convictions are increasingly falling foul of the 'good character' requirement of the British Nationality Act 1981. The recent Administrative Court judgment in Poloko Hiri v Secretary of State for the Home Department [2014] EWHC 254 (Admin), provides a good example of, as the judge put it, how inflexibly the policy on criminal convictions has been applied in practice.

Mr Hiri is a national of Botswana, who had been lawfully resident in the UK since 2006, and had served in the British Army since 2008. In 2011, he was convicted of speeding on a motorway and given a fine of £100 and 5 points on his driving licence. He applied for naturalisation in 2012 and his application was refused on the basis that he did not meet the 'good character' requirement because his conviction would not be 'spent' until November 2016. He applied for the decision to be re-considered, submitting a very favourable reference from his commanding officer stating that he was of exemplary character. Despite this, the refusal was maintained on the sole basis of his criminal conviction.

At the time, Mr Hiri made his application, the published policy on the 'good character' requirement stated that caseworkers should normally refuse an unspent conviction, although there was discretion to overlook some minor one-off offences. However, the guidance stated that caseworkers should not normally disregard any unspent conviction that fell under the category of "recklessness", which specifically included excessive speeding.

The Administrative Court quashed the decision to refuse Mr Hiri's application, requiring the Secretary of State to reconsider her decision. The judge found that the assessment of Mr Hiri's character was inadequate. The Secretary of State had failed to weigh "the powerful countervailing evidence of good character in the balance, in order to make an overall assessment of his character, as is required." No mention was made in the decision of the factors pointing to Mr Hiri's good character.

A change in policy

It is worth noting that since Mr Hiri's application was refused, the Home Office has changed its policy on assessment of criminal convictions in the context of the good character requirement under the British Nationality Act 1981. The published guidance on the good character requirement for naturalisation applications now states that applications will normally be refused where a non-custodial conviction occurred within the last 3 years. The paragraph referring to recklessness and to excessive speeding as an offence for which unspent convictions should not normally be disregarded does not feature in the current policy.

The use of the term "will normally be refused" indicates that the Secretary of State still retains a residual discretion to overlook such criminal convictions. Therefore, it is still the position that, as in Mr Hiri's case, the Secretary of State is bound to carry out a comprehensive assessment of each applicant's character. As the judge said in Hiri, "The Defendant is entitled to adopt a policy on the way in which criminal convictions will normally be considered by her caseworkers, but it should not be applied mechanistically and inflexibly. There has to be a comprehensive assessment of each applicant's character, as an individual, which involves an exercise of judgment, not just ticking boxes on a form."

How we can help

It goes without saying that if you are about to apply for naturalisation, but have an unspent conviction or any other problem that might give rise to questions on the part of the Secretary of State about your character, then it is very important that you put the best case forward to show that, taken as a whole, the Secretary of State should conclude that you are of good character.

Our naturalisation experts at Gherson can assist you in making such applications.

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For advice on immigration, nationality, extradition or human rights, please contact us now.

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