- BY Colin Yeo
Good character citizenship criteria quietly tightened up
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The Home Office has quietly tightened up the criteria for granting British citizenship under the good character test. This had passed me by so I thought it useful to flag up – and many thanks to Alex Moran for point it out. A number of undesirable behaviours have been added to the list of disqualifying behaviour, including illegal entry, assisting illegal migration and evasion of immigration control. The changes seem to have been made on 11 December 2014. The previous version of the guidance can be seen here and the new version here.
Unfortunately, these changes will prevent almost all refugees from qualifying for British citizenship for at least 10 years from their date of entry, as opposed to six years at present. This is arguably contrary to Article 31 of the Refugee Convention and certainly contrary to Article 34.
UPDATE: see this blog post on refugees and good character: Tightening of British citizenship rules not aimed at refugees
It also affects a very considerable number of people who may have committed minor or major infractions of immigration law, from short periods of overstay or some limited working without permission to significant deception, and who would not previously have encountered any issues with applying for naturalisation once their position was regularised.
[application]The changes are a response to the report last year by the old Chief Inspector of Borders and Immigration, John Vine. In a report published on 11 December 2014 he was critical of the application of the good character test. In response the Home Office said that new guidance has been published, as it indeed has. Essentially, John Vine has single handedly re-written decades of policy on the meaning of “good character” in nationality law so as to include immigration history. Thanks, John. I’m sure refugees will be delighted. Even overstayers (and it is SO easy to find oneself an overstayer given how absurdly strict some rules are) are arguably caught by the new policy.
The new parts of the guidance are as follows:
9.5 Illegal Entry
In circumstances where an applicant entered the UK illegally, an application for citizenship should normally be refused for a period of 10 years from the date of entry, if it is known. If it is not known, the period of 10 years starts from the date on which the person first brought themselves to or came to the attention of the Home Office.
9.6 Assisting Illegal Migration
The decision maker will normally refuse an application if there are grounds for believing that the person is currently, or has previously been, involved in an attempt to assist someone in the evasion of immigration control. This includes a person whose spouse’s/civil partner’s recent application for entry clearance has been refused on relationship grounds.
9.7 Evasion of immigration control
The decision maker will normally refuse an application if within the 10 years preceding the application the person has not been compliant with immigration requirements, including but not limited to having:
a. failed to report
b. failed to comply with any conditions imposed under the Immigration Acts
c. been detected working in the UK without permission
For reference, Article 31 of the Refugee Convention reads:
The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
Exclusion from citizenship purely because of means of entry as a refugee seems to me arguably to be a “penalty”. Even if not, the change is surely contrary to Article 34:
The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.
This hardly feels like facilitation. More like obstruction.
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20 responses
Thanks Colin. Very relevant for many clients. Does this mean there is now an obligation on the applicant for naturalisation to declare these alleged signs of bad character on the relevant bit of the application form?
Agree it seems like a penalty…wonder how long before the application of this amendment to refugees is struck down. I find some of the wording very interesting. e.g.
9.5 The reference to the date of entry being known. Known by whom? Presumably this applies to those who entered illegally, but then legalised their stay at some point, as otherwise they’d be on the 20 year track to ILR anyway, so then potentially yet another 10 years to citizenship?!
9.6 Interesting reference to spouse/civil partners given the abhorrent family migration rules
Interesting. So does this mean that If somebody enters as a tourist in say 2010, over stays they can’t apply for citizenship on basis of being an EEA National family member (having aquired PR) until at least 2020? or would the 10 years run from the last entry? So if leave and reenter in 2014 then 2024?…
Can’t answer that, sorry, it is simultaneously both too specific and also too low on detail! If a person has a right to reside under EU law they are here lawfully, though.
From last *illegal* entry or immigration offence. Not clear whether simple overstaying would be viewed as an offence (although it technically is, the guidance doesn’t specify it).
I expect Wayne the above does not apply to those residing here under EEA regulations.
I think it would apply if they meet the criteria in the guidance- the fact of residing under the regulations makes it less likely (no illegal entry etc) but for example if there was an alleged sham marriage that would be considered “bad character”…
“Even overstayers are arguably caught by the new policy.”
Would this be under “9.7 Evasion of immigration control” ?
Would this be all overstayers except refugees?
Is this from the point of first overstaying, or from the end of the most recent overstaying period?
Would reference to eg. EC38 or EU law (Chen/Zambrano) enable someone to claim their overstay was administrative rather than an offence/illegal?
You aren’t overstaying if you have a legal right to reside under EU law outside the requirements of the Immigration Acts.
Nor (just incidentally) are you overstaying if you used to have a right to reside under EU law but no longer have one (and never had leave to remain: helps if you entered under EU law too). That is technically speaking in terms of the criminal offence.
Thanks Colin for flagging this up. Like you say many asylum seekers who entered the UK illegally and successfully applied for asylum will be affected. Unfair!!!
>”refugees…coming directly from a territory where their life or freedom was threatened”
Forgive my ignorance, but how often does this occur? Surely 99.9% of refugees pass through continental Europe? Or am I applying an unduly literal interpretation of “directly” (my background is criminal law, not immigration). Thanks.
There’s a fair bit of case law on that question. A good starting point is the old case of ex parte Adimi, I think from memory in the Court of Appeal. There have been more recent cases too ehich have considered the imposition of criminal sanctions on refugees, including one in the Supreme Court. No defent internet from where I write this but i think it was covered on the blog.
Dear Colin Yeo,
Thank you so much for bringing this new rule of good character into attention.
Having read your article and the new rule take in effect on 11 dec 2014.
Please could you or anyone give me more reference and please advise on the issue which lot of people talking about at the moment.
Would this new rule effect the applications which is already submitted before the date and being hold for the decision?
( as it written on the rule, that it will take effect to all decision being made on or after 11 dec 2015) it is lawful, Fair to affect the existing applications?
Is it normal or usually be that all the new law must affect the existing applications. Or is this an Act of HMVI, especially try to make it effect backward. It personally thinks it is unfair, to launch new legislation, and make it affects those applications, the new rule was not existing at that time when submitting.
Regards
Sophia
Does that mean if a person enters the UK in 2001 and made them self know to the authorities same year as an overstayer and granted ILR in 2010 . Will they be affected should they chose to apply for citenzship in 2015
What will impact on those gor DL in legacy 3 years can they apply nationality after 7 tears
In past they were absconderd
Chapter 18 Annex D: the good character requirement > 9.7 Evasion of immigration control:
Could be bad news for all adult overstayers (24(1)(b)(i)), where Good character is a requirement. It doesn’t say that a minimum period of overstaying will be disregarded.
When is the new rule taking effect from, or is it already been used?
It is already in effect. It is not clear whether it will be applied to applications that had been made before December 2014 but were undecided at that time.
The guidance notes say the rules will be applied on any applications decided on or after 11 Dec 2014. They do not care when an application was made!