There have been some important additions to pages 50 and 51 of the Good Character guidance (a comparison of the new and old versions is here) that have the potential to block a large number of refugees from naturalising as British citizens, effective immediately. This is described in the changes section as a “clarification” rather than a change, although the fact that it is to be applied to applications made from 10 February 2025 seems to undermine this somewhat.

What has changed (sorry – been “clarified”)?

This has been added to page 50:

Any person applying for citizenship from 10 February 2025, who previously entered the UK illegally will normally be refused, regardless of the time that has passed since the illegal entry took place.

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Any person applying for citizenship before 10 February 2025 where illegal entry is a factor, will continue to have their application reviewed to determine whether that immigration breach should be disregarded for the purpose of the character assessment.

For those applying before 10 February 2025 the position is as it was in the previous guidance which is that it will normally be appropriate to refuse naturalisation where illegal entry took place in the past ten years.

The following section has been added to page 51:

Arriving without a required valid entry clearance or electronic travel authorisation, having made a dangerous journey

A person who applies for citizenship from 10 February 2025 who has previously arrived without a required valid entry clearance or electronic travel authorisation, having made a dangerous journey will normally be refused citizenship.

A dangerous journey includes, but is not limited to, travelling by small boat or concealed in a vehicle or other conveyance. It does not include, for example, arrival as a passenger with a commercial airline.

Naturalisation applications are expensive and there is no right of appeal against a refusal, so even though the guidance states that applications will “normally” be refused, meaning that there is room to ask for discretion to be exercised and a grant still made even where there has been illegal entry, in reality many people will be deterred by this change from even applying.

Data published yesterday shows that 62% of Labour voters support refugees being able to naturalise regardless of how they arrived here, so as well as being incredibly spiteful and damaging to integration, there is no political support for this change from those who voted in this government.

Update: to address a few points that arose following publication

First, the Home Office appear to have confirmed that this is intended to replace the citizenship ban in the Illegal Migration Act 2023 (see also this from the Home Secretary). As we are aware, that ban very much included refugees, and the reference to “dangerous journeys” in the new guidance also makes fairly clear who the target is, as we know that it is mainly refugees who have to take those journeys to come to the UK because of the lack of safe and legal routes.

In response to a Private Notice Question from former Home Secretary Lord Blunkett, a Home Office Minister has told the House of Lords that:

the presumption is that those who have arrived illegally will find their application turned down, unless they can provide a range of circumstances which are exceptional, compelling and mitigating, and where the Secretary of State may therefore choose to apply discretion to grant citizenship on an exceptional basis.

So the indication is that grants of citizenship will be very limited indeed, given the need to establish “exceptional and compelling circumstances”.

A reported exemption for children is no such thing and looks to me like Home Office spin. It was stated in The i Paper that “those who arrive in the UK as children, before going on to claim citizenship, will not be subject to the new restrictions if citizenship caseworkers judge that their illegal means of entry was outside their own control”. This is not new, the guidance already had the following section (it is on page 49 of the current version):

Discretion relating to children

When assessing a child’s good character, it will normally be appropriate to disregard immigration breaches if it is accepted this was outside of their control. For example, where a parent applied for the child to come to the UK as their dependant but failed to apply for an extension of leave when the child’s temporary leave expired, the child should not be penalised.

This still leaves the decision entirely up to the discretion of a Home Office caseworker and leaves those who entered as children in the same situation as in the rest of the guidance, where they will risk losing the application fee of £1,630 if the caseworker judges that their entry was somehow within their control. People will simply not apply.

So although it may feel like we have been here before when the ten year ban was brought in, some indication was given then that refugees were excluded from that ban. This change is very different, not least because the ban applies forever.

People have pointed to an example in the guidance that pre-existed these changes, that states:

• a person who entered illegally 14 years ago would normally require refusal of citizenship as an illegal entrant but has been recognised as a victim of trafficking and subsequently granted refugee status. They haven’t acquired any other notable adverse character issues during their residency, indicative that on a balance of probabilities they are now of good character

I do not believe that this is helpful. What is the position of this person if their entry was only seven years ago? What if they had refugee status only and had not been trafficked? If the exclusion is not meant to cover to refugees then it needs to be explicit and this example is nowhere near good enough. As I have said, these applications are expensive and people will not risk that money if it is unclear whether or not they will succeed.

Should there be an exception for those granted refugee status?

I think it is important to be clear that these changes need to go in their entirety and a carve out for refugees only will mean that some people are still wrongfully excluded from citizenship. An issue that many practitioners will be aware of is the Home Office wrongly refusing people asylum but instead granting them leave to remain on other grounds, for example on the grounds of their family or private life.

I am going to do a separate short post on this UNHCR report but this issue was mentioned in there at paragraph 116. But this has been a problem for as long as I can remember and it can be hard to convince someone who has finally been granted some form of leave after several years of being in the asylum process that they should appeal the decision and keep at it for another year or so with no guarantee of a positive result and refugee status. And that is if they even have a lawyer to help them.

This group should no more be excluded than those who have been granted refugee status. The exclusion must be scrapped for all.

Broken link in the guidance and earlier reference to the Refugee Convention

Some people have noticed a broken internal link in the guidance. It is unclear whether this is a typo, the link takes me to “Absconders” header just below it. With thanks to John Vassiliou who remembered discussing this with a previous version, I have checked and wanted to confirm that this broken link is not new and that version 3 dated 8 September 2022 and version 4 dated 31 July 2023 had the same broken link (“Where a person was previously granted refugee status, please also refer to overstaying and illegal entry: additional consideration for refugees”) on pages 48 and 50 respectively.

The link did not appear at all in version 2 dated 30 September 2020 states at pages 46 to 47, however I think it is useful to look at what that guidance did say about the Refugee Convention under the “Illegal entry” heading, wording which is absent from the later versions:

However, you must take account of Article 31 of the Refugee Convention when considering whether it is appropriate to refuse a person granted refugee status on the grounds of illegal entry. Article 31 states that refugees should not have any penalties imposed upon them as a consequence of illegally entering or being present in the country of refuge illegally in order to seek sanctuary, provided that they:

• travelled to the country of refuge directly from the territory where they fear persecution

• presented themselves to the domestic authorities without delay

• showed good cause for their illegal entry or presence

Article 31 of the Refugee Convention does not specify any minimum time before a person should claim asylum and this will need to be considered on a case-by-case basis. As a guide it is not unreasonable to expect that a person who enters the UK illegally, with the intention of claiming asylum, should claim asylum within 4 weeks of arrival. An applicant who, having entered illegally, delayed claiming asylum beyond this period will normally be refused citizenship unless there is a reasonable explanation for the delay.

There is also an expectation that those seeking protection should do so in the first available safe country, so should not, for example, travel across several European countries to claim in the UK. That by itself will not be grounds to refuse but it will be a factor to consider alongside others that may cast doubt on an applicant’s good character.

If an applicant entered illegally and would have had a valid section 31 defence but was convicted before their application for asylum was decided and granted, it may be appropriate to disregard the conviction.

Permanent exclusion from a national passport

The final point to note (again with thanks to John Vassiliou for flagging) is that a refugee cannot apply for a passport from their country of origin, even after they have been granted indefinite leave to remain, as doing so would lead the Home Office to consider that they have voluntarily re-availed themselves of the protection of their country of nationality and their indefinite leave could be revoked. This means that people will forever be locked out of a citizenship they can actually use, and will be stuck using a refugee travel document for travel, which is not a straightforward process.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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