Even those who consider themselves fairly abreast of the latest developments in UK immigration law may have missed the quiet tightening up of the criteria for granting British citizenship with regard to ‘good character’, applicable to decisions taken on or after 11th December 2014.
Although the British naturalisation requirements are stated in Schedule 1 to the British Nationality Act 1981, with one of the stipulations being that the applicant is of good character, the Act itself does not define ‘good character’, this instead being left to Home Office guidance.
It is such guidance that appears to have been updated towards the end of 2014 – with almost zero fanfare – to incorporate a longer list of disqualifying behaviours. The most obvious indicator in the previous guidance of a person not being of good character was a history of criminal convictions, with other factors ranging from notoriety, financial unsoundness and a history of deception or dishonesty to suspected criminal activity, war crimes and terrorism.
The extended list of undesirable behaviours, however, also includes illegal entry, assisting illegal migration and the evasion of immigration control. The detailed changes have been criticised as preventing almost all refugees from qualifying for British citizenship for at least 10 years from the date they entered Britain, as opposed to the six years outlined in the previous guidance.
The changes follow the old Chief Inspector of Borders and Immigration, John Vine’s publication of a report in late 2014 in which he criticised the way the good character test was applied. In the words of barrister Colin Yeo, this criticism amounted to him having “single handedly rewritten decades of policy on the meaning of ‘good character’ in nationality law so as to include immigration history.”
It is Section 9 of the guidance that specifically addresses issues around immigration, with the previous guidance having counted among such issues cheating in the English Language and/or Knowledge of Life tests; participating in a marriage of convenience; hiring illegal workers; relying upon false statements in applications; and previous deprivation of citizenship. These factors remain present in the modified guidance.
However, Section 9 the new guidance adds further criteria for the refusal of applications on good character grounds, stating on the subject of illegal entry that “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.”
Meanwhile, under the clause entitled “Evasion of immigration control”, the Section 9 guidance states: “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; or (c) been detected working in the UK without permission.”
The potentially draconian implications of these changes to the good character criteria – which tests for the last 10 years – will concern many solicitors in immigration law, including not only those serving refugees, but also such other parties as students who may have worked over hours and therefore be subject to HMRC scrutiny in the determination of what constitutes good character.