Good character changes September 2022

[curious_sam]

Hi everyone., hope you all are doing well.

Has anyone come across the new guidance on good character (speciafically overstaying in the last 10 years) ?

LInk :

https://www.gov.uk/government/publicati ... le-version

My understanding is, any immigration breach would be disregarded before the indefinite was issued. if anyone else has gone through it, can you confirm my theory ?

thanks in advance.

[contorted_svy]

I don't believe from my understanding that overstaying in the last 10 years would be automatically disregarded as far as one has ILR from the new guidance - there is a whole section in the link you posted about it. I highlighted some relevant sections below. Maybe you refer to the part where they now assume the lawful residence requirement was met in the 5 years qualifying period if one has ILR? That is not the same as disregarding immigration breaches in the last 10 years. Do you have a more precise scenario in mind?

Immigration breaches
An immigration breach is where a person has failed to comply with immigration requirements, for example:

failing to comply with conditions attached to a grant of permission to enter or stay in the UK

accessing public funds when prohibited from doing so

failing to report without reasonable excuse, when required to do so

assisting illegal immigration

working in the UK without permission to do so (illegal working)

hiring illegal workers

Failing to comply with immigration requirements within the 10 years before the date of decision will normally be a reason to refuse an application for British citizenship on the grounds of not meeting the good character requirement.

Abuse of immigration requirements may also occur if a person enters or remains in the UK for a purpose other than that for which they were given leave to enter or remain. For example, where a person is found to be working full time in the UK having entered the UK as a Tier 4 student and having failed to undertake or complete the course of study for which the leave was given.

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.

Lawful residence
An immigration breach relating to lawful residence includes overstaying, illegal entry and absconding.

Prior to 28 June 2022, immigration breaches in the 5-year period before a citizenship application were normally a reason for refusal of citizenship on the grounds of not meeting the lawful residence requirement set out in section 4 and section 6 (read with paragraphs 1 and 2 of Schedule 1) of the British Nationality Act (BNA) 1981. If the breach was in the 10-year period before a citizenship application, it was normally grounds for refusal of citizenship on the basis of not meeting the good character requirement.

Schedule 1 of the Nationality and Borders Act 2022 (NABA 2022) amended the requirements for naturalisation and registration for British citizenship under sections 4(2), 6(1) and 6(2) of the BNA 1981, so that a person can be treated as meeting the lawful residence requirement during the qualifying period without further enquiry where they hold indefinite leave to enter or remain in the UK. This change commenced on 28 June 2022.

This change does not extend to applications to naturalise as a British overseas territory citizen.

To align with changes to the qualifying period, where a person has committed immigration breaches relating to:

illegal entry

absconding

overstaying

may be disregarded when assessing good character during the 10-year period prior to the application, but only where all of the following factors apply:

the person is applying for naturalisation as a British citizen, or registration as a British citizen under s.4(2), 6(1) or 6(2) of the BNA 1981 after 28 June 2022

that person holds indefinite leave to enter or remain (ILE or ILR, also known as settlement) in the UK

no concerns (for example, regarding the person’s character) have arisen since the grant of settlement which might cast doubt on the decision

Therefore, applications where it remains appropriate to consider immigration breaches relating to lawful residence, alongside other good character factors, may include but are not limited to:

where historic information has come to light which, had it been known at the time of granting settlement, may have led to refusal

where something occurred after the grant of settlement to indicate revocation of that status may be appropriate

applications to naturalise as a British overseas territory citizen

Immigration breaches that do not relate to lawful residence (for example working in breach of conditions, hiring illegal workers, or failure to observe reporting requirements) must still be considered.

See Naturalisation as British citizen by discretion

Overstaying
Where you are not disregarding immigration breaches relating to lawful residence, if a person has previously overstayed permission to enter or stay in the UK, it will normally be appropriate to refuse the application for citizenship, unless it is the sole adverse factor weighing against the person’s good character; and either:

the person’s application for leave to remain was made on or after 24 November 2016, and the application did not fall for refusal on the grounds of overstaying because an exception under paragraph 39E of the Immigration Rules applied

the period without leave was not the fault of the applicant, for example where it arose from a Home Office decision to refuse which is subsequently withdrawn or quashed or which the courts have required the Home Office to reconsider

For information on dealing with breaches of conditions see liability to administrative removal.

Illegal entry
Where you are not disregarding immigration breaches relating to lawful residence, if a person has previously entered the UK illegally, it will normally be appropriate to refuse the application for citizenship if the illegal entry is confirmed as having occurred during the preceding 10 years. If the date of entry cannot be confirmed, or if the person subsequently goes to ground, or absconds, the period of 10 years starts from the date on which the person last brought themselves to or came to the attention of the Home Office.

Failure to comply with immigration requirements may be evidenced by service of a notice of liability to administrative removal. The IS151A liability to administrative removal notice was replaced on 6 April 2015 by a RED.0001 form, or where an application is also being refused at the same time, by a single decision notice which incorporates a notice of liability to removal. However, given the length of residence an applicant requires in order to apply for citizenship, IS151As will continue to be relevant until early 2025. This can show that a person came to notice as someone who breached the conditions of their leave, remained in the UK unlawfully without leave, or entered the UK illegally. Relevant Home Office database records such as Atlas, should be checked to see why the liability notice was served.

Where a person was previously granted refugee status, please also refer to overstaying and illegal entry: additional consideration for refugees.

For further information on illegal entrants see Irregular or unlawful entry and arrival.

Absconders
A person given temporary admission, temporary release, bail or release on a restriction order may be required to report at stipulated intervals to a port of entry or to an immigration reporting centre. A person who fails to comply with any reporting restrictions, thus no longer maintaining contact with the Home Office so that their whereabouts are unknown, may become subject to absconder action.

Evidence of absconding may be apparent from Atlas or other relevant database records, or Police National Computer records.

Where you are not disregarding immigration breaches relating to lawful residence, if a person has previously absconded, it will normally be appropriate to refuse the application for citizenship for a period of 10 years from the date they last brought themselves or came to the attention of the Home Office after having absconded.

For further information see non-compliance and absconder process instructions and Border Force absconder guidance.

[curious_sam]

I don't believe from my understanding that overstaying in the last 10 years would be automatically disregarded as far as one has ILR from the new guidance - there is a whole section in the link you posted about it. I highlighted some relevant sections below. Maybe you refer to the part where they now assume the lawful residence requirement was met in the 5 years qualifying period if one has ILR? That is not the same as disregarding immigration breaches in the last 10 years. Do you have a more precise scenario in mind?

Immigration breaches
An immigration breach is where a person has failed to comply with immigration requirements, for example:

failing to comply with conditions attached to a grant of permission to enter or stay in the UK

accessing public funds when prohibited from doing so

failing to report without reasonable excuse, when required to do so

assisting illegal immigration

working in the UK without permission to do so (illegal working)

hiring illegal workers

Failing to comply with immigration requirements within the 10 years before the date of decision will normally be a reason to refuse an application for British citizenship on the grounds of not meeting the good character requirement.

Abuse of immigration requirements may also occur if a person enters or remains in the UK for a purpose other than that for which they were given leave to enter or remain. For example, where a person is found to be working full time in the UK having entered the UK as a Tier 4 student and having failed to undertake or complete the course of study for which the leave was given.

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.

Lawful residence
An immigration breach relating to lawful residence includes overstaying, illegal entry and absconding.

Prior to 28 June 2022, immigration breaches in the 5-year period before a citizenship application were normally a reason for refusal of citizenship on the grounds of not meeting the lawful residence requirement set out in section 4 and section 6 (read with paragraphs 1 and 2 of Schedule 1) of the British Nationality Act (BNA) 1981. If the breach was in the 10-year period before a citizenship application, it was normally grounds for refusal of citizenship on the basis of not meeting the good character requirement.

Schedule 1 of the Nationality and Borders Act 2022 (NABA 2022) amended the requirements for naturalisation and registration for British citizenship under sections 4(2), 6(1) and 6(2) of the BNA 1981, so that a person can be treated as meeting the lawful residence requirement during the qualifying period without further enquiry where they hold indefinite leave to enter or remain in the UK. This change commenced on 28 June 2022.

This change does not extend to applications to naturalise as a British overseas territory citizen.

To align with changes to the qualifying period, where a person has committed immigration breaches relating to:

illegal entry

absconding

overstaying

may be disregarded when assessing good character during the 10-year period prior to the application, but only where all of the following factors apply:

the person is applying for naturalisation as a British citizen, or registration as a British citizen under s.4(2), 6(1) or 6(2) of the BNA 1981 after 28 June 2022

that person holds indefinite leave to enter or remain (ILE or ILR, also known as settlement) in the UK

no concerns (for example, regarding the person’s character) have arisen since the grant of settlement which might cast doubt on the decision

Therefore, applications where it remains appropriate to consider immigration breaches relating to lawful residence, alongside other good character factors, may include but are not limited to:

where historic information has come to light which, had it been known at the time of granting settlement, may have led to refusal

where something occurred after the grant of settlement to indicate revocation of that status may be appropriate

applications to naturalise as a British overseas territory citizen

Immigration breaches that do not relate to lawful residence (for example working in breach of conditions, hiring illegal workers, or failure to observe reporting requirements) must still be considered.

See Naturalisation as British citizen by discretion

Overstaying
Where you are not disregarding immigration breaches relating to lawful residence, if a person has previously overstayed permission to enter or stay in the UK, it will normally be appropriate to refuse the application for citizenship, unless it is the sole adverse factor weighing against the person’s good character; and either:

the person’s application for leave to remain was made on or after 24 November 2016, and the application did not fall for refusal on the grounds of overstaying because an exception under paragraph 39E of the Immigration Rules applied

the period without leave was not the fault of the applicant, for example where it arose from a Home Office decision to refuse which is subsequently withdrawn or quashed or which the courts have required the Home Office to reconsider

For information on dealing with breaches of conditions see liability to administrative removal.

Illegal entry
Where you are not disregarding immigration breaches relating to lawful residence, if a person has previously entered the UK illegally, it will normally be appropriate to refuse the application for citizenship if the illegal entry is confirmed as having occurred during the preceding 10 years. If the date of entry cannot be confirmed, or if the person subsequently goes to ground, or absconds, the period of 10 years starts from the date on which the person last brought themselves to or came to the attention of the Home Office.

Failure to comply with immigration requirements may be evidenced by service of a notice of liability to administrative removal. The IS151A liability to administrative removal notice was replaced on 6 April 2015 by a RED.0001 form, or where an application is also being refused at the same time, by a single decision notice which incorporates a notice of liability to removal. However, given the length of residence an applicant requires in order to apply for citizenship, IS151As will continue to be relevant until early 2025. This can show that a person came to notice as someone who breached the conditions of their leave, remained in the UK unlawfully without leave, or entered the UK illegally. Relevant Home Office database records such as Atlas, should be checked to see why the liability notice was served.

Where a person was previously granted refugee status, please also refer to overstaying and illegal entry: additional consideration for refugees.

For further information on illegal entrants see Irregular or unlawful entry and arrival.

Absconders
A person given temporary admission, temporary release, bail or release on a restriction order may be required to report at stipulated intervals to a port of entry or to an immigration reporting centre. A person who fails to comply with any reporting restrictions, thus no longer maintaining contact with the Home Office so that their whereabouts are unknown, may become subject to absconder action.

Evidence of absconding may be apparent from Atlas or other relevant database records, or Police National Computer records.

Where you are not disregarding immigration breaches relating to lawful residence, if a person has previously absconded, it will normally be appropriate to refuse the application for citizenship for a period of 10 years from the date they last brought themselves or came to the attention of the Home Office after having absconded.

For further information see non-compliance and absconder process instructions and Border Force absconder guidance.

Thanks for the detailed response.

Basically, I overstayed my student visa (due to my solicitor's error) from February 2014 till December 2014 when I was issued an EU-sponsored visa. I have settled status since late 2019. Didn't apply for naturalization as it would have been a straight refusal.

Reading the below quote, would you recommend I should go for naturalisation ?

FYI I haven't been in any trouble with the police or any other offenses:

To align with changes to the qualifying period, where a person has committed immigration breaches relating to:

illegal entry

absconding

overstaying

may be disregarded when assessing good character during the 10-year period prior to the application, but only where all of the following factors apply:

the person is applying for naturalisation as a British citizen, or registration as a British citizen under s.4(2), 6(1) or 6(2) of the BNA 1981 after 28 June 2022

that person holds indefinite leave to enter or remain (ILE or ILR, also known as settlement) in the UK

no concerns (for example, regarding the person’s character) have arisen since the grant of settlement which might cast doubt on the decision

Therefore, applications where it remains appropriate to consider immigration breaches relating to lawful residence, alongside other good character factors, may include but are not limited to:

where historic information has come to light which, had it been known at the time of granting settlement, may have led to refusal

where something occurred after the grant of settlement to indicate revocation of that status may be appropriate

applications to naturalise as a British overseas territory citizen

Immigration breaches that do not relate to lawful residence (for example working in breach of conditions, hiring illegal workers, or failure to observe reporting requirements) must still be considered

Thanks in advance

[Yasifsadi]

Hi

I am under the same impression that as long as you hold ILR and nothing new concerns anrises after your ILR they will be disregarding the overstay of last 10 years under good character requirements.

So any period of overstay in last 10 years will not be a reason for your refusal as it was before.

That’s a welcome change.

[contorted_svy]

Would your overstay apply to this?

where historic information has come to light which, had it been known at the time of granting settlement, may have led to refusal

If the answer is no, considering I am not an immigration expert, I would say you should be fine if you never had anything else that would cast doubt on your good character.

If not, a simple overstay outside of the qualifying period (provided the conditions I highlighted above are respected) *should* be fine under the new rules. I am not sure if and how this should be disclosed in the cover letter.

Do make sure to check you are below the absence limit and you fulfill all the other requirements for naturalisation, so that nothing else raises an eyebrow in your paperwork.

[level3]

I was refused naturalisation in May 2021 due to overstaying for almost 3 years from August 2011 till July 2014. My refusal said I shall wait until I spend 10 years lawfully in the UK and in this case, I would have been eligible for naturalisation application on 25th July 2024 because I got my refugee status on 25th July 2014.

Now looking at the amendment in the British Nationality and Borders Act 2022, it looks like the Home Office will follow new rules and will disregard the overstay breach in the past 10 years in my opinion. The policy guidance has been recently published on the 20th of September but still is somewhat confusing to be honest.

Specially this below part confuses me so much about overstaying in the new guidance.



"Overstaying
Where you are not disregarding immigration breaches relating to lawful residence, if a person has previously overstayed permission to enter or stay in the UK, it will normally be appropriate to refuse the application for citizenship, unless it is the sole adverse factor weighing against the person’s good character; and either:

the person’s application for leave to remain was made on or after 24 November 2016, and the application did not fall for refusal on the grounds of overstaying because an exception under paragraph 39E of the Immigration Rules applied

the period without leave was not the fault of the applicant, for example where it arose from a Home Office decision to refuse which is subsequently withdrawn or quashed or which the courts have required the Home Office to reconsider"


I hope someone with knowledge and experience sees my query and responds here to find out whether I am once again eligible for application because I meet all the other new requirements by the Home Office. The only adverse factor in my application is the overstay that I have mentioned above.


Kind regards

[contorted_svy]

From my understanding, if you haven't overstayed during the 5 years qualifying period, previous overstays are likely to be disregarded.

However, in your case, it's almost 3 years, and it might raise eyebrows. If this was me, I would try to get a professional opinion.

The safest option for both of you is to wait until 2024, when the 10 years will have elapsed and it will be way less likely that you are refused and lose the fee.

[London22]

Hi everyone., hope you all are doing well.

Has anyone come across the new guidance on good character (speciafically overstaying in the last 10 years) ?

LInk :

https://www.gov.uk/government/publicati ... le-version

My understanding is, any immigration breach would be disregarded before the indefinite was issued. if anyone else has gone through it, can you confirm my theory ?

thanks in advance.

As usual ambiguous information .Refugees who have overstyaed in the last 10 years may have defence of articke 31 of refugee convention but practically home office doesnt follow article 31 and refuses applications ,a very few with exceptional circumstances are accepted .Those who have overstayed in last 10 years & are not refugees must not apply for citizenship unless 10 years are completed. Refugees always like to naturalize to get real freedom but nationality laws are complex even lawyers cant tell for sure what would be outcome .Most lawyers simply advise to wait for 10 years and apply for stress free straightforward application.

[curious_sam]

Thanks everyone for their input

[Raynato]

This might be of help

"Nationality policy: Naturalisation as a British citizen by discretion Version 10 .0 1 of 53 Published for Home Office staff on 28 June 2022 "

Applications received from people with indefinite leave to enter or remain in the UK If the applicant has indefinite leave to enter or remain in the UK (ILE or ILR) you do not need to look back to see if they were here lawfully. You may proceed to grant the application if all the other requirements are met. You do not need to ask for evidence of the person’s status prior to them being granted ILE or ILR, or whether they were working lawfully, or what their basis of stay was in the UK. For example, you do not need to enquire what activity was being undertaken or whether EEA nationals with ILR needed or had comprehensive sickness insurance. This will apply to the vast majority of cases. It may still be appropriate to continue to apply the requirement in certain circumstances, such as where information has subsequently come to light which, had it been known at the time, might have affected the decision to grant indefinite leave, or might now lead to revocation of ILE/ILR. In such cases you must make a thorough assessment of the person’s immigration history. If there were periods of unlawful presence in the UK, you must consider whether there were any factors that might make it appropriate to exercise discretion using the guidance at Annex B. The good character guidance has been amended to be consistent with this approach.

[Raynato]

As you can see this covers both the lawfull residence condition AND good character for cases where there are no doubts about the circumstances under which ilr has been granted or the conduct of the applicant thereafter

[London22]

This might be of help

"Nationality policy: Naturalisation as a British citizen by discretion Version 10 .0 1 of 53 Published for Home Office staff on 28 June 2022 "

Applications received from people with indefinite leave to enter or remain in the UK If the applicant has indefinite leave to enter or remain in the UK (ILE or ILR) you do not need to look back to see if they were here lawfully. You may proceed to grant the application if all the other requirements are met. You do not need to ask for evidence of the person’s status prior to them being granted ILE or ILR, or whether they were working lawfully, or what their basis of stay was in the UK. For example, you do not need to enquire what activity was being undertaken or whether EEA nationals with ILR needed or had comprehensive sickness insurance. This will apply to the vast majority of cases. It may still be appropriate to continue to apply the requirement in certain circumstances, such as where information has subsequently come to light which, had it been known at the time, might have affected the decision to grant indefinite leave, or might now lead to revocation of ILE/ILR. In such cases you must make a thorough assessment of the person’s immigration history. If there were periods of unlawful presence in the UK, you must consider whether there were any factors that might make it appropriate to exercise discretion using the guidance at Annex B. The good character guidance has been amended to be consistent with this approach.

I don't think the new change is making it easy for overstayers to get citizenship.It might encourage many to apply but majority will be refused .After reading it no lawyer,caseworker or an applicant can certainly say what the guidance is all about.Unlawful residence in the qualifying period of 5 years may disregarded.It is just may be not automatic.The big question is how can an applicant have ILR & unlawful residence ,absconding or illegal entry in the last 5 years as well??? Home office is likely to have a secret information for its caseworkers on this very bit change & people will only know once decisions start coming .There is a bit of news on this change calling it a good change but it's not .How can someone expect a good change or relaxation in rules from Tories???

[Raynato]

Unlawful residence in the qualifying period of 5 years may disregarded.It is just may be not automatic.

There is a very clear criteria of three conditions for "automatic" disregarding it

The big question is how can an applicant have ILR & unlawful residence ,absconding or illegal entry in the last 5 years as well???

That is exactly why it has been ammended and that the presence of ilr will suffice to meet the condition

.How can someone expect a good change or relaxation in rules from Tories???

Absolutely especially of recent!
Still a mystery what is going on!