Immigration Update: The Good Character Requirement in a British Nationality Application

In respect of concerns raised recently in the report of the Independent Chief Inspector of Borders and Immigration titled ‘A short inspection of the Home Office’s application of the good character requirement in the case of young persons who apply for registration as British citizens’ dated July 2017 (“July 2017 Report“) regarding the Good Character Requirement in a British Nationality Application for minors, the Home Office responded in their February-April 2017 Policy Paper and having acknowledged the recommendations raised, will publish an updated guidance by the end of December 2017. It is important that you seek guidance and assistance from our expert immigration lawyers to make a successful British Nationality Application.

British Nationality Application for Young Persons

There are two routes for registering a British Nationality Application for young persons (someone between the age of 10 and 17); either:

  • they are legally entitled to register as either of their parents is British at the time of their birth; or
  • they are entitled to register because either of their parents became a British citizen or obtained settlement in the United Kingdom after their birth

Only in the second scenario, the Home Secretary has a discretionary power to determine the application based on the Good Character Requirement of the applicant. Both the adult and the young person whose parents were not settled in the UK or a British national at the time of his birth must be of good character to be registered as a British citizen. The burden is on the applicant to establish the Good Character Requirement in a British Nationality Application.

The Good Character Requirement in a British Nationality Application

“Good character” is not defined in the British Nationality Act 1981, there is no statutory guidance for its interpretation for a British Nationality Application. In general, it means respecting the rights and freedoms of the UK, observing the law and fulfilling their duties and obligations as a resident of the UK. Annex D to chapter 18 of the Home Office guidance: Nationality Policy and Casework Instruction provides guidance to how the Good Character Requirement should be assessed for adults as well as young persons in a British Nationality Application.

Both adult and minor applicants must disclose all criminal convictions within and outside the UK including non-custodial sentences, out of court disposals (e.g. fines, caution, community sentences) pending prosecutions, dishonesty (e.g. failure to disclose convictions) and breach of immigration rules in a British Nationality Application.

Each offence has a respective qualifying “rehabilitation period” under Annex D 2(i). For example, if an adult was imprisoned or detained in a young offender institution for up to 6 months, the rehabilitation period is 7 years, and 3.5 years if the offender was a minor at the time of conviction. The application should be refused unless relevant rehabilitation period has passed.

Criminal records play a significant part in the assessment of the Good Character Requirement in a British Nationality Application, but the mere existence or lack of a criminal record is not in itself a conclusive indication. It used to be the case that the caseworker could exercise the Home Secretary’s discretion to disregard a single caution considering all other information in specific circumstances, it is not clear how the discretion is exercised anymore or at all, and it is pointed out that there is need to promote young persons’ best interests as a primary consideration in a British Nationality Application.

Current Position on the Good Character Requirement in a British Nationality Application

The Good Character Requirement is set out in section 41A of the British Nationality Act 1981. It does not differentiate adults from young persons. Queries regarding the safeguard and promotion of children’s welfare and best interests were raised in the July 2017 Report, because the current assessment applies the same standard to adult and young person, and the scope of the caseworkers’ discretion regarding good character is unclear.

The current guidance specifies that the breach of immigration rules, such as deception in previous immigration applications, results in a 10-year restriction for applications starting from the date the dishonesty was discovered. For example, a person used deception in an application in 2008, but that was discovered or admitted to in 2010, the 10 year period would start in 2010. Although the guidance has mentioned that breach of immigration rules can be disregarded if the dependent child had no control of the breach, if the test is equally applied to a young persons as well as adults, the 10 year ban means that the young person’s right to registration would lapse, in which case, the child might become a Foreign National Adult and subject to the full Naturalisation Requirements.

A Foreign National Adult

As a foreign national adult (18 years old or above) the applicant can only apply for the British citizenship by way of naturalisation, which also has the good character requirement; even if the applicant is allowed to apply for British citizenship with a spent conviction, the right to register as a British citizen based on the fact that his parent became a British citizen or settled in the UK would have lapsed as he is no longer under 18.

Naturalisation Requirements

For the naturalisation application,  depending on whether or not the applicant is married to or in a civil partnership with a British citizen, there are respective Residence Requirements to be satisfied in addition to the Good Character Requirement. Please find full details on the Naturalisation Requirements here.

Impact of the Current Position on a British Nationality Application for Young Persons

It is made clear in the July 2017 Report that the application of the same Good Character Requirement in a British Nationality Application for a young person as well as an adult can have detrimental consequences to the prospects of the young person registering as a British citizen. This because the young person, by virtue of a 10 years restriction, would miss the opportunity to register as a British national as result of failing the Good Character Requirement test and would be taken to be a Foreign National Adult applying under the full Naturalisation Requirments once the 10 years restriction expires. Therefore, a young person being deprived of the opportunity to register as a British national on the basis of the Good Character Requirement applied to Foreign National Adults is said to be unfair and against the Home Office’s policy on considering the best interests of the young person as a primary consideration in accordance with the UN Convention on the Rights of the Child (UNCRC).

The Home Office has responded to the July 2017 Report; and in acknowledgement of the concerns raised, has indicated that a revised and updated guidance on the Good Character Requirement for Young Persons in a British Nationality Application will be released by the end of December 2017. The new guidance coming in December 2017 is expected to clarify and distinguish the Good Character Requirement test applied to young persons and adults to reflect the promotion of children’s interests as a primary consideration. Once the new guidance is released, a discussion may arise on to the proper approach to reflect and have regard to the need to safeguard and promote the welfare of children in the UK.

Using Legal Representation to Submit a British Nationality Application

Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on the law and your immigration matter. You can instruct one of our immigration and visa legal representatives to successfully assist you with making a British Nationality Application to the UK Home Office. Our solicitors and Barristers will help you comply with the UK Home Office requirements and meet the UK Immigration Rules.

Caseworkers at the UK Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your Immigration & Visa application succeeds, our solicitors and barristers will ensure all specified documents must be provided. The UK Immigration Rules are complex and a legal representative can help ensure that your application meets the Immigration Rules.

Successfully Submit a British Nationality Application

Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your prospects of submitting a British Nationality Application before your application even reaches the UK Home Office Visa & Immigration department. We can assist you with the preparation and submission of a British Nationality Application and ensure that you meet all the requirements of the relevant rules.

Our offices are based in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients.  We are minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.

Preparation is the key to a successful British Nationality Application. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation to discuss a British Nationality Application.

Contact our London immigration solicitors on 02071830570 or complete our contact form.

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