The latest version of the Home Office’s Good character requirement guidance published on 14 January 2019 incorporates long-awaited new sections on children and refugees. There are also new sections on absolute and conditional discharges, detention and training orders, extremism, deportation orders, NHS debt, and failing to pay litigation costs.

The document now weighs in at a hefty 53 pages, up from a pre-Christmas 30. With the rising page count comes rising frustration with the Home Office’s persistent failure to give ground in how harshly it applies the good character requirement to children.

While the policy is most controversial in respect of citizenship applicants aged 10 to 17, this document is not just aimed at children but at all citizenship applicants.

What is the good character requirement?

The good character requirement (often referred to as the good character test) is a statutory provision in the British Nationality Act 1981. It gives the Home Secretary a wide discretion to refuse applications where, despite ostensibly meeting the requirements for citizenship, an applicant is nevertheless deemed to be of bad character. This can be for any number of reasons set out in the document, most commonly criminality, financial impropriety, or breach of the immigration laws.

As Colin points out in his overview of this topic, “good character” itself is a term undefined in statute. The absence of a statutory definition gives the Home Secretary considerable leeway in setting out his own definition of who is or is not deemed to be of good character. Instead of a concise definition, however, we now have 53 pages of policy guidance.

Who does it apply to?

In short, the good character requirement applies to nearly every applicant for British citizenship over the age of 10. Yes, that includes children yet to set foot in secondary school.

The long explanation is that the good character requirement, previously confined to naturalisation applications, was extended to registration applications on 4 December 2006  by section 58 of the Immigration, Asylum and Nationality Act 2006. This provision was subsequently repealed but in effect replaced by the insertion of section 41A into the British Nationality Act 1981 on 13 January 2010.

So as of 13 January 2010, the legislation ensured that the good character requirement would not only apply to naturalisation applicants but also those applying for registration under sections 1(3), (3A) or (4), 3(1), (2) or (5), 4(2) or (5), 4A, 4C, 4D, 4F, 4G, 4H, 4I, 5, 10(1) or (2) or 13(1) or (3) of the 1981 Act. It was also rolled out to those applying for the other, lesser, categories of British citizenship: British Overseas Territories Citizen, British Overseas Citizen or British Subject.

The upshot is that children, who often acquire British citizenship via the registration rather than naturalisation process, can be refused on the basis of bad character. The Home Office does use this power.

Incompatible with human rights law for certain applicants

As a consequence of declarations of incompatibility with the Human Rights Act 1998 arising from the Johnson and David Fenton Bangs cases, a remedial order has been drafted to amend the 1981 Act.  This would remove the good character requirement from applications for registration in cases where the person’s lack of British citizenship is down to historic gender discrimination. The order seems to have lost momentum now and disappeared into the ether but that’s another story. For now, although the requirement has been declared to be incompatible with the Human Rights Act, it remains on the statute books.

Children

To be of good character a person should show respect for the rights and freedoms of the United Kingdom, observe its laws and fulfil their rights and duties as a resident of the United Kingdom. Checks will be made on children aged 10 years and over to ensure that this requirement is met.

So the Home Office proudly states in one of its other guidance documents.

Many readers will have been following the ongoing campaign by the Project for Registration of Children as British Citizens (PRCBC) to push for legislative change to do away with the good character requirement for children. This has gathered widespread support, including from the Independent Chief Inspector of Borders and Immigration David Bolt, but we are yet to see any substantive change to the law.

The new guidance does no more than pay lip service to the Chief Inspector’s recommendations. It adds some standard paragraphs about the best interests of the child and the section 55 welfare safeguarding duty which will be well familiar to all practitioners and frankly do little to instil any confidence. The statutory duty under section 55 has always existed and it applies regardless of whether or not a reminder to caseworkers is placed at the front of a 53-page document. If a decision-maker fails to comply with their statutory duty, the fact that some standard text has been copy and pasted into their guidance document doesn’t suddenly make the decision any more lawful than it was before.

The following section relating to children (or “young persons” as they are styled in the guidance) has also been added:

The good character requirement applies to a person who is aged 10 or over at the date of application. When assessing whether a child is of good character, you must take account of any mitigation relevant to the child’s particular circumstances. Where a child has been convicted of a criminal offence, sentencing guidelines require that any custodial or non-custodial sentence is adjusted to take into account the child’s age and particular circumstances and any mitigating factors such as their ability to understand the consequences of their actions. Therefore although the criminal sentence thresholds for refusal and non-custodial sentencing guidelines for adults will normally apply to a child who has been convicted of a criminal offence, the lesser sentence handed down to them will mean they are automatically less likely to meet the higher thresholds. Consideration must also be given to any subsequent mitigation put forward by the applicant that was not taken into account at the time of sentencing. You may exercise discretion where a child’s criminality would result in a lifetime refusal of any citizenship application (i.e. over 4 years in prison). In these cases the amount of time passed since the crime should be weighed up against any evidence of rehabilitation.

This basically seems to say that a child’s age will have already been taken into account in criminal sentencing and therefore it’s pretty much OK to just go ahead and apply the same criteria to them as would be applied to adults. Yes, there is mention of mitigating circumstances, but there is no elaboration on what those circumstances might be, and how the mitigation might be applied against a criminal conviction.

This adds little to the previously silent guidance. The problem is that no matter how many times the guidance is revised, the good character requirement remains law. Whilst it is of course within the Home Secretary’s gift to amend the guidance to say for example that the test will be applied liberally to children and that little weight will be given to criminal convictions (unlikely to happen I know), the simpler solution would be for Parliament to put things back to how they were and remove it completely from children’s applications.

Lastly worth noting in relation to children is a very sneaky change in phrasing on the guidance relating to criminal convictions. When a decision-maker is considering an overall pattern of behaviour arising from multiple minor convictions, the guidance offers a number of factors to be taken into account when determining whether or not the applicant might fail the good character assessment. The old version of the guidance used to list “the age of the applicant at the time” of conviction as a relevant factor. This would theoretically allow some mitigation for, say, a crime committed when a person was still a child in contrast to someone who has committed a crime as a fully mature adult.

This factor has now been removed from the list without explanation. Apparently age no longer matters here and all criminals must be treated equally, regardless of how old they were when convicted. When viewed against all the additional rhetoric about children that has been added to the new guidance, this feels like a disappointing regression.

Illegal entry and overstaying

The policy on illegal entry and overstaying was drastically expanded in 2014 to cast its net over a 10 year period prior to the date of application. This is at odds with the 1981 Act which only requires a three or five year period to be taken in to account. One of my clients tried to argue at judicial review that the policy was therefore unlawful but we were unsuccessful. There was no appetite to incur the cost of an appeal and we sadly had to leave it be. The English High Court has also rejected this argument.

Setting aside any controversy over this aspect of the policy, one positive change is the recognition that in some instances, those granted refugee status may have to be excused for prior breaches of the immigration laws. The guidance now makes explicit reference to Article 31 of the Refugee Convention, which requires states not to impose penalties on refugees on account of their illegal entry or unauthorised presence in the country “provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”.

We should not be applauding the Home Office however – this is trite law and nothing new. This ought to have been recognised all along, and the interpretation that has been incorporated into the guidance remains punitive.

Extremism and unacceptable behaviour

A new section on extremism and unacceptable behaviour has been added to say that

A person who has engaged in unacceptable behaviour will normally be refused British citizenship, unless they have publicly retracted their views and it is clear that they have not re-engaged in such behaviour.

Unacceptable behaviour covers any non-UK national whether in the UK or abroad who uses any means or medium including:

• writing, producing, publishing or distributing material
• public speaking including preaching
• running a website
• using a position of responsibility such as a teacher, community or youth leader

to express views which:

• incite, justify or glorify terrorist violence in furtherance of particular beliefs
• seek to provoke others to terrorist acts
• foment other serious criminal activity or seek to provoke others to serious criminal acts
• foster hatred which might lead to inter-community violence in the UK

The list of unacceptable behaviours is indicative rather than exhaustive.

The same list of “unacceptable behaviours” is used to exclude foreign nationals from the UK.

NHS and litigation debt

The last addition worth a quick mention is the incorporation of NHS debt over £500 and unpaid Home Office litigation debt as evidence of bad character. These provisions already exist in the Immigration Rules as reasons to refuse a visa and are simply mirrored in this citizenship  guidance. This is unsurprising and seems fair enough, though we must hope that nationality caseworkers do not begin to conduct themselves the way that entry clearance officers have.