As per the ‘Standard requirements for naturalisation’ the applicant must be of ‘Good Character’ (if aged 10+).
The applicant will be exempt from the ‘Good Character’ requirement (rarely) if:
a. an application is made under statelessness provisions in Schedule 2 of the British Nationality Act 1981 (the Act), or;
b. an application is made under s.4B of the Act from an eligible applicant
There is no definition of ‘Good Character’ in British Nationality Act 1981 but the Secretary of State must be satisfied that the applicant is of good character on the balance of probabilities. Therefore, the consideration of whether the applicant is of ‘Good Character’ will be based on the applicant’s criminal record and other relevant information.
I will break the common questions into ‘criminal issues’ (Qs 1-14) and ‘other issues’ (Q15 onwards).
Criminal Issues:
The ‘Good Character ‘requirement is not bound by the Rehabilitation of Offenders Act 1974 (the 1974 Act). Therefore, the fact that a conviction (or equivalent) is ‘spent’ is no longer the important factor. For example, a ‘simple’ police caution will be immediately ‘spent’ under the 1974 Act but for the ‘Good Character’ requirement the police caution can still create a refusal for 3 years after it is given.
Q1 - Custodial convictions
Custodial convictions will result in a refusal for a prescribed period as follows:
Imprisonment of 4 or more years = indefinite refusal (it does not matter when the conviction was given)
Imprisonment of between 12 months and 4 years = refusal for 15 years from the end of the sentence
Imprisonment of up to 12 months = refusal for 10 years from the end of the sentence
Note: it has now been decided that a 'suspended sentence' will be treated akin to a non-custodial sentence, unless 'activated'.
Q2 - Non-custodial convictions
If you have been convicted for a non-custodial offence then your application will be refused for 3 years since the conviction was given but see Q8 and Q8A.
Q3 - What is a non-custodial conviction?
A non-custodial conviction will include instances where the defendant has been convicted at court but not sent to prison (e.g. issued a fine but see the note in question 1) and will also include simple and conditional police cautions and certain hospital orders. If you have multiple cautions this may also be grounds for refusal even if 3 years has lapsed.
Also note that if you plead guilty by post for a traffic offence or are found guilty at court for a (even minor) traffic offence, this will amount to a conviction.
Q4 - I have been arrested or charged after my application was submitted do I need to inform the Home Office?
You must inform the Home Office if you are arrested or charged with an offence after you make your application and while the application is under consideration. You risk prosecution under section 46 of the British Nationality Act 1981 if you do not do so. It may cause your application to be placed on hold whilst your criminal case is determined. If that results in a conviction or akin (e.g. police caution) you will likely be refused and have to wait as above until you can reapply.
What about a Fixed Penalty Notice [FPN], a Procurator Fiscal Fine and an ASBO?
Q5 - FPN
A FPN (often given for minor motoring offences such as speeding) is not a conviction and will not be grounds for refusal unless the applicant has received numerous FPNs in the last 12 months. Therefore, you should wait until you have no more one FPN in the last 12 months before applying.
If you go to court for a FPN because you do not pay the fine or you challenge the FPN and the FPN is upheld (found guilty) this will then be classed as a conviction and may lead to (at a minimum) a refusal for 3 years.
Note: penalty charge notices and notices for disorder (PCN/PND) may be considered as a FPN for the purpose of ‘Good Character’ as per section 3.7 in form AN. However, a PCN/PND should have no bearing on the application unless PCNs/PNDs are numerous. There is no specific requirement to declare a PCN.
Q6 - Fiscal Fines (Scotland)
If you have been given a fiscal fine to deal with an alleged offence this will not be classed as a conviction. However, the caseworker will consider (with discretion) the offence that was alleged. If you do not pay your fiscal fine and it ends up at court and is upheld, this will then be considered as a conviction and may lead to (at a minimum) a refusal for 3 years.
Q7 - ASBO
An ASBO is a civil issue not criminal therefore, will not be considered as a conviction unless it is breached (this can then constitute a criminal conviction).
If you (as a parent) have a child/children who has a conviction or ABSO this may indicate that you have been complicit in their activities or particularly negligent and thus are not of Good Character.
Q8 - I have one non-custodial sentence but 3 years has not lapsed, will they still refuse me?
If you have a single (one) conviction (non-custodial) and it occurred within the first 2 years of the 3 (i.e. you have had no offences within the last 12 months), there are strong countervailing factors which suggest that you are of good character in all other regards and the decision to refuse would be disproportionate then it may be deemed an exceptional case and your application may be granted (exceptional grant under section 10(b) of Chapter 18, Annex D) despite 3 years not lapsing since the date of conviction. It may be wise to only try this where the non-custodial sentence was for a 'minor offence' and did not involve drugs or violence for example. See also, Q8A.
Q8A - Can my application still be refused even though my non-custodial sentence has lapsed?
Under section 3.8 of Chapter 18, Annex D, an application may still be refused even though you have an non-custodial sentence or out-of-court disposal that was given more than 3 years ago. This new guidance allows the decision maker to take into account a number of factors* which may bring into doubt the character of the applicant and allow for a refusal. It may be that sentences/out-of-court disposals for more serious offences such as, a caution for manslaughter or rape may be a bar for a considerably longer period than 3 years.
*Factors to be considered would include:
-The number of non-custodial sentences/out-of-court disposals on the applicants record. The more non-custodial sentences and/or out-of-court disposals that are recorded the more likely it is to indicate a persistent offender which may increase the risk of refusal.
-The time that has lapsed since the applicant last received a non-custodial sentence/out-of-court disposal. The longer that has lapsed since the non-custodial sentence/out-of-court disposal was given, the less likely for refusal.
-The nature of the offence(s) - minor or more serious and whether drugs or violence are involved. The more serious, violent/sexual and drug related offences are likely to increase the risk of refusal.
-The age of the applicant at the time s(he) committed the offence(s). The younger the applicant at the time of the offence, the less likely this will lead to a refusal, particularly if the applicant was a juvenile at the time of the offence.
-Any other aggravating or mitigating factor(s), i.e. racially, religiously or homophobic related offences and offences against the vulnerable will be aggravating factors. Mental/Physical illness may be a mitigating factor.
Q9 - Sexual offences
If you have a conviction for a sexual offence and are subject to reporting notifications then you will normally be refused. There are other instances where a sexual offence can lead to refusal so you would benefit from professional advice prior to applying if you have one.
Q10 - I was convicted abroad does this count?
Convictions aboard will be considered in line with a conviction in the UK as above but see Q10A.
Q10A - My conviction abroad is not recognised in the UK will it still create a refusal?
It will normally be appropriate to disregard a conviction for behaviour that is considered legitimate in the UK. Examples of offences abroad that you may disregard include homosexuality or membership of a trade union. However, the fact that there may be no equivalent for an overseas offence in British law does not in itself mean that the offence should automatically be disregarded, and the caseworker must look at what that offence indicates about the person’s character. A willingness to disobey the law in another country may be relevant even if the conduct would have been lawful in the UK.
Q11 - Should I declare my conviction even if it is spent?
You should declare all spent and unspent convictions. You should also include information relating to any FPNs (that are still on your licence or have been given in the last 12 months) and Fiscal Fines. If you have any endorsements on your driving licence you must provide the paper counterpart.
In addition section 3.18 now states:
Have you ever engaged in any other activities which might indicate that you may not be considered a person of good character?
This may include instances where a person did not receive a conviction or out of court disposal.
Q12 - I did not include my conviction will I be refused?
It depends on the intent. If you concealed minor convictions and were refused because of this, you will likely be refused citizenship for a 10 year period.
If you did not know you had a conviction then you should not be refused on grounds of deception.
There are other instances where deception can result in a 10 year refusal for example, bogus marriages, falsification of KOLL requirements etc….
You should also be aware that to knowingly provide false information may result in criminal prosecution.
Referees may also be liable to prosecution under section 46(1) where they have been involved in attempts to deceive, for example, by deliberately making false statements about the length and nature of their acquaintance with the person.
Q13 - I have a pending prosecution should I apply?
It is unlikely that you would be granted citizenship if you have a pending prosecution. If you choose to apply with a pending prosecution you should inform the HO of the pending prosecution.
Q14 - International crimes and terrorism
If you have been involved with international crimes such as war crimes or genocide or terrorism you should seek professional advice as a refusal is likely.
Other Issues
Q15 – I have breached immigration rules/I was an overstayer in the past; will this lead to a refusal?
Please also see here (click) for further information.
I entered the UK illegally will this impact my application?
If you entered the UK illegally in the past your application will normally be refused for 10 years from:
1 – The date in which you entered the UK illegally if this is known to the Home Officer or
2 – The date in which you first brought yourself to the attention or came to the attention of the Home Office.
For example, Joe entered the UK illegally in September 2007 and came to the attention of the Home Office in March 2008. Joe applied for citizenship in January 2015. Joe’s application was refused. Joe’s application will normally be refused until at least March 2018. This is because Joe entered the UK illegally and will therefore, normally be refused for 10 years from (2) the date in which he become known to the Home Office (March 2008).
I did not comply with my immigration requirements/I breached immigration control/I overstayed, will this lead to a refusal?
If you breached immigration control or overstayed in the 10 years preceding your application, you will normally be refused.
An application will normally be refused if, within the previous 10 years (before the date of decision), the person has not complied with immigration requirements, including having:
• failed to comply with (breached) conditions imposed under the Immigration Acts, for example:
o accessed public funds when prohibited from doing so
o worked in the UK without permission to do so
o studied in the UK in contravention of any restrictions on studying
o failed, without reasonable excuse, to report when required to do so
• remained in the UK after their leave, including when leave extended by virtue of section 3C or 3D of the Immigration Act 1971 has expired.
Note: You may be able to mitigate the period of overtstaying your leave if you can show that there was no way in which you could have left the UK before your leave expired. For example, this may include a period of hospitilsation during which your leave expired. Another example may be that you made an in time application to extend your leave but that application was returned as invalid. However, you subsequently made another (out of time) application soon after receiving the notice of invalidity and that application was successful. The reason for overtstaying should not have been deliberate or substantial.
The applicant is a child
When assessing failure to comply with immigration requirements, it will normally be appropriate to disregard failure relating to a child when assessing their good character, 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.
I have refugee status; will I still be refused for 10 years due to my immigration history?
There are no clear exemptions for Refugees who apply for British nationality. While there will be circumstances when it would be inappropriate to refuse citizenship to people who entered the UK illegally, claimed asylum and were subsequently granted refugee status, those who need international protection are expected to apply for it at the earliest opportunity and in the first safe country they reach. Consequently, there will be cases where refugees will normally be refused citizenship because they entered illegally and chose not to claim asylum at the first available opportunity, or only claimed after enforcement action was taken against them.
However, the caseworker 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.
I consented to someone else’s immigration application which was subsequently refused; will this affect my nationality application?
Your application may be refused, but it depends on the reason for the refusal of the other person’s immigration application. You are more likely to be refused if:
1 – The application was refused for a breach of immigration rules (for example, deception);
2 – Your relationship to the applicant was integral to that breach (for example, refusal of a spouse visa because of a relationship deception);
3 – It is reasonable to believe that you were aware of assisting illegal migration by consenting to the application;
4 – You did not take reasonable steps to ensure that the application you consented to was genuine; and
5 – The application was recent (there appears to be no definition of what is considered recent).
Note: If you assist illegal migration to the UK in another way, you may also be refused.
You should disclose any relevant information that may cast doubt on your character. Apart from criminal convictions this is mainly looking at civil issues.
What checks are made by the HO (non criminal)?
Credit checks are now being piloted for some nationality applications, if you have numerous debts that have defaulted and/or CCJs and/or Insolvency issues, this may indicate you are not of Good Character and your application may be refused [See Below]. The Home Office will check an applicant’s financial background with the police and other government departments. For example, checks will be conducted to ascertain if the applicant has paid income tax, National Insurance contributions, Council Tax and whether they have any civil penalties or judgements.
Civil Issues
You must give details of any relevant civil issues. This can include civil penalties under the UK Immigration Acts, County Court Judgements (CCJs), Bankruptcy, Liquidation, DWP civil penalties, HMRC fines etc….
Q16 - I was made bankrupt will this cause a refusal?
You will not normally be granted citizenship if your bankruptcy has not been discharged. Even when the bankruptcy has been discharged you may have to wait at least 10 years (since being discharged) before you will be successful unless; the bankruptcy was annulled or it was through little or no fault of your own or you were declared bankrupt abroad.
Q17 - My company was liquidated will this affect my application?
It depends on the reason for the liquidation. If it was through little or no fault of your own e.g. your business has been severely affected by an economic downturn then your application should not be refused. However, if not, you may have to wait at least 10 years since the liquidation before your application will be successful.
Q18 - I have a CCJ will this cause a refusal?
A CCJ is not a ground on its own to refuse the application. However, the fact that you have a CCJ may be evidence that you are deliberately and recklessly building up debts with no intention of paying them back which, is a grounds for refusal. Therefore, if you have a CCJ you should include evidence that you are making repayments or that the CCJ has been paid/settled.
You can check whether you have a CCJ registered against you by visiting Trust Online. Although, if your CCJ is settled within one month of being issued it may not be registered.
If you cannot afford to pay your CCJ you can apply to the Court to vary the instalments. See Q20 if you are struggling to pay your debts.
Q19 - I have an IVA will this lead to a refusal?
Providing you are making repayments this should not indicate that you are deliberately and recklessly building up debts with no intention of paying them back and should not cause a refusal.
Q20 - I have debts will this lead to a refusal?
Being in debt (even heavily) will alone, not be a grounds for refusal unless the caseworker believes that you are deliberately and recklessly building up debts with no intention of paying them back. If you are making repayments (even if token payments) this should be enough to rebut any assumption. Therefore, you should ensure that you are making some payment each month, if you need help to arrange this see the charities below.
If you are struggling to pay your debts you should seek free, impartial and confidential advice from the National Debtline or Step Change or your local Citizens Advice.
Q21 - I did not pay my council tax will this lead to a refusal?
If you fail to pay your council tax this may lead to a refusal. However, if you have arranged with the local authority to pay the council tax arrears (or have paid them back) then you should not be refused.
Q22 - I am unemployed will this lead to a refusal?
There is no requirement that you need to be employed therefore, this should not lead to a refusal.
Q23 - I have not paid my taxes will this case a problem?
If you have tax arrears/HMRC penalties you should make arrangements to repay them or dispute them if you do not think you are liable. However, if you have evaded paying your taxes this may result in a refusal (and possible prosecution). Note: that if you are employed (even cash in hand), your employer is responsible for paying your taxes and NI contributions.
Q24 - I am claiming public funds will I be refused?
Claiming public funds that you are entitled to is fine and will not be grounds for refusal.
However, if you are claiming public funds which you are not entitled to this is likely to result in a refusal. Although, if you claimed public funds you were not entitled to, but there was no deliberate attempt to deceive the authorities, this should not result in a refusal.
Q25 - other grounds for refusal
There are other grounds for refusing citizenship applications (e.g. hiring illegal workers etc….) and if you feel that your circumstances may cast doubt on your character and have not been answered here, then start a new thread and/or seek professional advice.
Q26 - Exceptional Grants
An exceptional case is one where on the facts of the case, the application would normally be refused but there are mitigating circumstances which mean it would be appropriate to grant.
Examples of where applications may be granted include, but are not limited to, cases where:
• the person’s criminal conviction is for an offence which is not recognised in the UK or there is no comparable offence, for example homosexuality or membership of a trade union: see Convictions and sentences imposed outside of the UK
• the person has one single non-custodial sentence which occurred within the first 2 years of the preceding 3 (such as the person has had no offences within the last 12 months), and there are strong factors which suggest the person is of good character in all other regards so the decision to refuse would be disproportionate
• the applicant has one single conviction but has lived in the UK all their life or since a very young age and the conviction was many years ago.
All proposals to grant exceptionally must be approved by the Chief Caseworker.
Any proposal to grant a person who has been convicted with a sentence of 4 years or more imprisonment must be approved by ministers.
Further information:
vinny wrote: ↑Fri Nov 03, 2017 1:03 amInspection report of the Home Office’s application of the good character requirement, July 2017.
secret.simon wrote: ↑Wed May 09, 2018 3:58 pmThe Economist: An extraordinarily vague “good character” test accounts for a rocketing number of citizenship refusals
vinny wrote: ↑Wed Apr 17, 2019 9:49 amBad news for overstayers in latest hardening of British citizenship policy.
However,It is difficult to envision many other situations in which people could successfully argue that an extended period of overstaying was not their “fault”. The only obvious example that comes to mind is where the applicant was a child at the time of the overstaying and the guidance does in fact state elsewhere that applicants should not be penalised for this. Another example might be where the applicant was in an abusive relationship and prevented from extending their leave by their partner.
Luckily
Non-compliance with immigration requirements
….
When assessing failure to comply with immigration requirements, it will normally be appropriate to disregard failure relating to a child when assessing their good character, 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
Obie wrote: ↑Thu Oct 20, 2016 12:35 pmThe Supreme Court has declared that the application of character test to children who would have been a British Citizen at birth, had they not been born out of wedlock, is unlawful.
Johnson, R (on the application of) v Secretary of State for the Home Department [2016] UKSC 56 (19 October 2016).
It unfortunately did not rule that the Changes on the 1st July 2006 must be applied retrospectively, but it however state that the criminal record acquired by Mr Johnson should not preclude him from qualifying, due to the historical discrimination caused by the fact that his parents were not married at the time of his birth.
It follows from the is decision, that those person born out of wedlock before 1-07-2006 cannot be refused Registration owing to a criminal record.