Good character requirement applies to all applications for British citizenship by naturalisation and to most types of applications for registration by applicants over 10 years of age.
The British Nationality Act does not have a definition of good character. It is assessed on the basis of the policy guidance which changes from time to time.
- financial soundness,
- immigration-related matters,
- any history of dishonesty and
- public policy considerations.
Good character requirements for children over the age of 10
Criminal sentence thresholds for children in applications fr British citizenship are normally the same as those for adults (see below). However, the decision-maker has to take into consideration any mitigating factors, especially those that were not considered at the time of sentencing. Where criminal history of the child will result in lifetime refusal of any application for naturalisation, the decision-maker may find it appropriate to exercise discretion.
In every case involving a child the decision-maker has statutory duty to give primary consideration to the best interests of the child. It does not mean that the discretion will always be exercised in favour of the application, but there is scope to make representations regarding potential hardship the child may face if not granted citizenship.
The Home Office guidance on good character does not comment on the weight to be given to any immigration related offences in considering good character of applicant children. It would be unjustifiably harsh to give weight to immigration offences committed by the parents of the child or to give weight to factors which are totally outside the child’s control. Any refusal on the basis of not meeting the good character requirement as a result of having been in breach of immigration control in childhood would undoubtedly lead to legal challenge.
Having a criminal record does not necessarily mean that the application for British citizenship will be refused. However, failure to declare a criminal record in the application would most likely lead to a refusal in its own right.
Non-custodial sentences and out-of-court disposals are taken into account. The guidance sets a threshold of three years from the date of the non-custodial conviction or out-of-court disposal to the date of application.
Non-custodial sentences include fines, warnings, community sentences, absolute or conditional discharges, and hospital orders. A suspended prison sentence is treated as a non-custodial sentence. Out-of-court disposals may include warnings or cautions.
Driving convictions are part of the overall assessment and it is important to declare them. Parking offences and fixed penalty notices are not. However, persistent parking offences or any persistent disregard of the rules or social norms may call good character into question.
A custodial sentence of less than 12 months would normally trigger a 10-year threshold from the date of the conviction.
A custodial sentence of 12 months or more but less than 4 years would take 15 years before an application for naturalisation can be expected to be successful.
The guidance says that the application would normally be refused if the applicant had any criminal convictions punished with a custodial sentence of four years or more.
Overseas convictions are given the same weight as those imposed in the UK. However, offences which do not constitute criminal activity in the UK, such as choice of sexual identity, freedom of speech or membership of a trade union, should not lead to refusal of the application for British citizenship.
All convictions, including spent convictions and those already taken off one’s criminal record, have to be disclosed in the application for citizenship.
The decision-maker is expected to make an overall assessment of character and different factors should be given weight. The number of offences and the time period over which they were committed is taken into consideration, as well as any evidence that the person is of reformed character, positive contribution to the society in the UK and the applicant’s ties with the UK, including family ties.
Financial situations which may have an effect on the application for naturalisation include:
- Liquidation of a company of which the applicant was a director;
- Debt; or
- Non-payment of taxes including council tax.
Bankruptcy, liquidation of a company or debt would not be an automatic ground for refusal. Rather, the decision-maker would be expected to consider whether at any point of time the applicant had acted recklessly, was irresponsible or dishonest.
A person who has an NHS debt of more than £500 would not normally be considered of good character.
Immigration-related matters in the assessment of good character
This includes a variety of scenarios, including overstaying, failure to report, absconding, illegal working, illegal entry, sham marriages, assisting illegal migration. This is perhaps the most common ground for refusal of applications for naturalisation.
The guidance states that a single incident of overstaying within 10 years prior to the application for naturalisation would only be disregarded in very limited circumstances: either it was not the fault of the applicant (for example, the applicant was a child and not in control of the situation), or the incident was before 24 November 2016 and for less than 28 days, or, if overstaying was after 24 November 2016, it was disregarded in a subsequent application for leave to remain.
Hiring illegal workers is treated with more severity than actual illegal working, independently of whether the employer knew that he was at fault. The guidance states that where there is reliable evidence to suggest that the applicant employed illegal workers, their application for citizenship would normally be refused. There is no time limit or expiration on this offence.
It is apparently part of the hostile environment that even minor immigration offences are treated on a par with offences triggering custodial sentences of under 12 months, and employing illegal workers is given the same treatment as offences punished with over four years’ imprisonment.
Where immigration compliance can potentially be an issue it is very important for the applicant to have legal advice and representation.
Dishonesty and deception
In addition to some obvious examples of dishonesty, such as fraud or unlawfully accessing benefits or services, the guidance lists providing false or deliberately misleading information in any previous immigration application. It is irrelevant if any benefit was obtained by deception.
Where the applicant was found using deception in a previous application for naturalisation or another immigration application, all further applications would be refused for 10 years.
Who is exempt from the “good character” requirement
Some sections in the British Nationality Act are aimed at rectifying the discriminatory effect of nationality law in the past, for example where British citizenship could only be passed through male line or where unmarried fathers could not pass British citizenship to their children. The BNA provided routes for registration of persons affected by this historical discrimination.
Initially, the good character requirement extended to these section of the law as much as to all other registration applications. The legality of this requirement was challenged in courts on the ground that it was discriminatory to apply the good character requirement in those circumstances where registration was to correct an injustice created by the laws in the past. The courts upheld these claims and found the requirement of good character discriminatory.
As a result, applicants for registration on the basis that they were born to a British mother at the time when women could not pass British nationality to children born abroad, are now exempt from the “good character” requirement.
Similarly exempt are applicants whose parents were not married and who could not take British citizenship from their fathers.