The good character requirement in nationality applications has recently been put in the spotlight with Parliament’s Human Rights Committee expressing its 'deep concern' for children who are being denied their right to claim British nationality because of the Government’s 'unduly heavy-handed approach'.
The guidance on good character in nationality applications applies to applications for naturalisation by adults and for registration from those who are aged 10 or over at the time the application is made. Here we focus on the application of the good character requirement to adults applying to naturalise as British citizens. Where adults are refused British citizenship due to the good character requirements, that could have a knock-on effect on their children’s applications to register as a British citizen.
Over the years, there has been a growing list of factors which can be taken into account in considering whether someone is of good character for the purposes of a naturalisation application. Criminal convictions of many types as well as fines, tax liabilities, NHS debt and breaches of immigration conditions can all negatively influence an application. This blog updates our previous blog from 2013 to highlight some of the key issues in this area.
How are criminal convictions considered?
It is often assumed that those applying for British Citizenship don’t have to disclose ‘spent’ convictions, so older convictions would not have to be disclosed. However, in the case of naturalisation applications, criminal convictions are not considered ‘spent’ but are instead evaluated according to a ‘sentence-based threshold.’
If you have been convicted of an offence, the length of time you must wait before you can make a naturalisation application is:
- Sentence of 4 years or more imprisonment - your application will normally be refused, regardless of when the conviction occurred.
- Between 12 months and 4 years imprisonment - your application will normally be refused unless 15 years have passed since the end of the sentence.
- Up to 12 months' imprisonment- your application will normally be refused unless 10 years have passed since the end of the sentence.
- A non-custodial offence or other out-of-court disposal recorded in a criminal record - applications will normally be refused if the conviction occurred in the last 3 years
Any overseas conviction or non-custodial sentence will be treated in the same way as one imposed in the UK. It is likely that the majority of people caught out by these rules will fall under the non-custodial offence or other out-of-court disposal recorded in a criminal record section.
What is caught under the non-custodial offences or other out-of-court disposal?
Receiving a fixed penalty notice does not form part of someone’s criminal record and would not normally lead to refusal of the application. However, most commonly, fixed penalty notices can become an issue for the application where they are unpaid or the recipient has been referred to a court due to non-payment, and where the court orders the fine to be paid. In those circumstances, the fixed penalty notice would be treated as a non-custodial offence within the sentence-based thresholds. For example, where an individual has been ordered to pay a court fine of say £100, they will only be able to make an application for naturalisation as a British citizen after a period of 3 years. So keep an eye out for those unpaid TV licence fines.
If you have been issued with a caution, warning or reprimand it is recorded on your criminal record and is an example of an out-of-court disposal and will be considered when assessing the good character requirement against the sentence-based thresholds. Before accepting any such caution, it is important to take legal advice on the implications of doing so. Accepting a caution is not just a 'slap on the wrist' as is sometimes suggested by the Police and it can have grave implications for future employment prospects as well as immigration status.
If a caution has been accepted it is, in certain circumstances, possible to challenge its administration through judicial review or discretionary expungement, if the caution has been imposed unlawfully. However, these remedies can take time and are notoriously difficult to challenge - prevention is certainly much better than cure in these circumstances.
Criminality is but one aspect of the good character requirement in naturalisation applications. When considering this requirement, UKVI will look at your application in its totality and will also consider such things as the persistency of minor offences. Essentially, depending on how many offences you committed and how recent they are, UKVI might view them as an indication that you are not in fact of good character.
Similarly, with regard to your finances and dealings with HMRC, UKVI can make checks to ascertain that all of your financial liabilities are up to date and are current. Is your Council Tax up to date? Have you kept your local council informed of the number of people living in your property and are you paying the correct amount of Council Tax? Payment of Council Tax is a legal requirement and failure to pay may result in an individual failing to meet the good character requirement.
An application may be refused if, within the previous 10 years (before the date of decision), the applicant has shown non-compliance with immigration requirements. Examples include where the applicant has accessed public funds when prohibited from doing so, worked in the UK without permission, studied in breach of conditions, failed to report or overstayed a visa.
If there has been an attempt to deceive, or the applicant has been clearly dishonest in their dealings with another government department, the application will normally be refused. Examples include fraudulent benefits claims and providing dishonest information to acquire goods or services. Interestingly, the guidance does not directly specify the time period for which such an issue would lead to refusal of a naturalisation application, although it may be for up to 10 years, as with non-compliance with immigration requirements.
Where a caution is accepted, guilt is admitted and so care should be taken where there is an allegation of deception or dishonesty in relation to a UK Government department as an application could be prevented for 10 years. As mentioned above, before accepting any caution, legal advice should be sought as quickly as possible before it is too late.
Some applicants may have an NHS debt if they have received free healthcare at a hospital to which they were not entitled. A person will not normally be considered of good character if they have outstanding debts to the NHS.
These are just a few of the considerations UKVI takes into account when assessing the good character guidance requirements in naturalisation applications to become a British citizen.