Introduction
Waiting period
What offences are caught under the non-custodial offence threshold?
Other considerations


Introduction

Those applying for naturalisation should be aware that any criminal convictions and tax issues can be taken into account when their applications are assessed.

On December 13 2012 the UK Border Agency announced a change to the way in which it assesses criminal convictions, which will affect how the Border Agency will assess the 'good character' requirement for naturalisation applications. No longer will criminal convictions be considered 'spent'; instead, they will be evaluated according to a "sentence-based threshold".

Waiting period

For those who have been convicted of an offence in the United Kingdom, the length of time that must pass before a naturalisation application can be made is now set as follows:

  • A sentence of four years' imprisonment or longer – the application will be refused, regardless of when the conviction occurred.
  • Between 12 months' and four years' imprisonment – the application will be refused unless 15 years have passed since the end of the sentence.
  • Up to 12 months' imprisonment in the last seven years – the application will be refused unless seven years have passed since the end of the sentence.
  • A non-custodial offence – applications will be refused if the conviction occurred in the last three years.

It is likely that the majority of people affected by this change will fall under the non-custodial offence section.

What offences are caught under the non-custodial offence threshold?

Most commonly, unpaid fines and notices that have been referred to a court due to non-payment where the court orders the fine to be paid are treated as a conviction and will be assessed by the Border Agency against the sentencing threshold for a non-custodial offence. For example, where an individual has been ordered to pay a court fine of £100, he or she will be able to make an application for naturalisation as a British citizen only after a period of three years from the date of the conviction.

Police cautions are now also considered when assessing the good character requirement for a naturalisation application and will be assessed against the non-custodial sentencing threshold. Interestingly, where an individual has received an anti-social behaviour order (ASBO), it will not be assessed as a non-custodial offence. However, the breach of an ASBO is a criminal offence.

These changes now make it mandatory for individuals to declare any offences or convictions ever received, either in the United Kingdom or abroad. Where an offence occurred abroad, it will be considered in line with the equivalent UK offence and the relevant sentencing threshold will apply.

Other considerations

Criminality is only one aspect of the 'good character' requirement in naturalisation applications. When considering this requirement, the Border Agency will look at the application in its totality and will also consider such things as fixed penalty notices. Essentially, depending on how many an applicant has and how recently he or she received them, the Border Agency may view them as an indication that the applicant is not of good character.

Similarly, with regard to finances and dealings with Her Majesty's Revenue and Customs, the Border Agency can check to ascertain that all of the applicant's financial liabilities are up to date. In particular, where individuals are self-employed the Border Agency will want to see evidence that all taxes have been paid. For applicants that are behind on payments or have made no payments, the Border Agency can look at this as an indication that they are not of good character.

Bearing this in mind, it is important that applicants' council tax payments are up to date and that the local council has been kept informed of the number of people living on the applicant's property. Payment of council tax is a legal requirement and failure to pay it will result in an individual's failure to meet the good character requirement.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.

For further information on this topic please contact Karen Collins at Kingsley Napley by telephone (+44 20 7814 1200), fax (+44 20 7490 2288) or email (kcollins@kingsleynapley.co.uk ). The Kingsley Napley website can be accessed at www.kingsleynapley.co.uk.