When applying for British citizenship, any applicant aged 10 or over, must meet the good character requirement. The good character requirement has been subject to considerable change over the years with more and more detailed guidance being published by the Secretary of State for the Home Department. The British Nationality Act 1981 which covers grants of citizenship, does not, within itself, define good character, the ever-lengthening Home Office guidance gives details of when an application is likely to be refused on good character grounds.
What defines a “good character”?
The Secretary of State for the Home Department previously used their wide discretion to refuse applications where they deemed the applicant to not be of good character. This was litigated on some occasions, notably by Mohamed Al-Fayed (who lost his battle).
A key change in recent years has been the tightening up of the requirements governing unlawful stay in the UK. It is now likely that an application made where the applicant’s history includes overstaying within the last ten years, is likely to be refused.
In R (on the application of Al-Enein) v Secretary of State for the Home Department  EWCA Civ 2024, 25 November 2019 this policy of refusal for any unlawful stay in the UK in the past ten years was looked at. The court concluded that it was not ‘ultra vires’ or going beyond the power of the executive to have this policy in place. The reason this was argued is that the British Nationality Act itself states that, in the case of Spouses of British nationals, breach of immigration laws in the last three years will be considered. In the case of those not married to British nationals, the relevant period is five years. The court found, as alluded to above, that the Secretary of State has the power to determine whether a potential citizen is of good character and can do so in the manner she sees fit.
Are there exceptions for refugees?
There is some reprieve in the guidance for refugees who were subsequently granted refugee status. It would be unlawful for the guidance not to provide an exception in this way as Article 31 of the Refugee Convention 1951 precludes national governments from penalising refugees where they have fled persecution; shown good cause for entering the UK illegally; and, presented themselves to the authorities as soon as is reasonably practicable. The good character guidance requires that refugees claim within four weeks of arrival in the UK, this, if strictly applied by the Home Office, has the potential to be found unlawful as it is more restrictive than the Refugee Convention.
Don’t forget to declare!
A very common problem encountered in refused applications for British Citizenship is a failure to declare civil or criminal penalties. My advice to clients is always, declare, declare, declare. If the Home Office consider that you have failed to declare an offence to them, you are likely to be found to have been deceptive in an application and banned from re-application for ten years. Many minor offences are unlikely to impact your application, unless you fail to declare them.
A tip for OISC professionals
A tip for OISC professionals or immigration caseworkers is to ask potential applicants about library fines and late bills. Whilst these don’t need to be declared in the application, it assists applicants in focussing their mind on potential conduct that may need to be declared, such as fixed penalty notices for dropping litter and so forth.
The Home Office does have wide discretion in citizenship applications generally. So do be aware that if the Applicant is aware of the risks (losing their money) then you can, as it were, have a punt, without damaging the Applicant’s future chances as long as you: declare, declare, declare.
For more great legal advice follow our blog.