Nationality – Good character requirement for British Citizenship
Good character requirements are part of the mandatory assessment for most of citizenship applications in the UK.
New rules for good character in citizenship applications
On the 31st July 2023 a new set of rules governing the good character criminality considerations for UK citizenship applications started to apply. The new requirements replaced the previous set of rules on criminality, custodial sentence or non-custodial sentence which were dealt with on a basis of the sentence-based thresholds approach.
The new approach is very different. In the new Good Character guidance there is no clear provision for discarding previous criminal convictions from the consideration for the citizenship irrespective how long ago was the offence. That means, simply speaking, that any sentence or criminal matter that the applicant had in the past will be taken into account in the good character assessment. No matter how long ago it was received.
It will make citizenship applications much harder for any applicant with criminal convictions on their record.
Dependant children in applications for British citizenship
The rules state that in case when a child welfare is involved in the case, the child’s best interest must be taken into account by the caseworker.
In practice that means that any applicant with dependant children who can apply or have already the citizenship will have a better chance of receiving citizenship despite good character requirement not having been met. Applicant will need to provide evidence that the decision will affect the child.
Good character considerations – negative and positive factors to be taken into account
Home Office assesses good character on the balance of probabilities. They expect the applicant to provide the case worker with all the relevant information. All the convictions and pending prosecutions. Applicants may also present any mitigating evidence concerning their behaviour and record.
Situations in which applications for citizenship may be refused
- criminality – if they have not respected or are not prepared to abide by the law for example, they have been convicted of a crime or there are reasonable grounds to suspect, meaning it is more likely than not, they have been involved in crime
- international crimes, terrorism and other non-conducive activity – if they have been involved in or associated with war crimes, crimes against humanity or genocide, terrorism, or other actions that are considered not to be conducive to the public good
- financial soundness – if their financial affairs have not been in appropriate order – for example, they have failed to pay taxes for which they were liable or have accrued significant debt or were involved in a bancruptcy where there was a doubt about the integrity of the process
- notoriety – if their activities have been notorious and cast serious doubt on their standing in the local community
- deception and dishonesty – if they have been deliberately dishonest or deceptive in their dealings with the UK government, for example they have made false claims in order to obtain benefits
- immigration-related matters – if they have breached immigration laws, for example by overstaying, working in breach of conditions or assisting in the evasion of immigration control, where such matters are not to be disregarded for that person
- deprivation – if they have previously been deprived of citizenship
The good character requirement applies to a person who is aged 10 or over at the date of application. When assessing whether a child is of good character, you must take account of any mitigation relevant to the child’s particular circumstances.
The criminal sentence thresholds for refusal and non-custodial sentencing guidelines for adults will normally apply to a child who has been convicted of a criminal offence, the lesser sentence handed down to them may mean they are less likely to meet the higher thresholds.
Consideration must also be given to any subsequent mitigation put forward by the person that was not taken into account at the time of sentencing.
Home Office will also apply discretion in cases which under normal circumstances would result in a lifetime refusal of a citizenship application. The amount of time passed since the crime should be weighed up along with positive factors, such as any evidence of rehabilitation.
Criminal offences and citizenship application
Situations in which citizenship application will be refused:
- an applicant have received a custodial sentence of at least 12 months in the UK or overseas
- have consecutive sentences totalling at least 12 months in the UK or overseas
- are a persistent offender who shows a particular disregard for the law
- have committed an offence which has caused serious harm
- an applicant have committed a sexual offence or their details are recorded by the police on a register
Situation when an application may be refused:
- an applicant has a custodial sentence of less than 12 months
- a non-custodial sentence or out-of-court disposal recorded on their criminal record
In the above two situations an applicant must present mitigating circumstances in order to receive citizenship.
Non disclosure of criminal convictions in citizenship application
An applicant has to declare all his convictions and sentences, even those considered spent. Nationality decisions are exempt from section 4 of the Rehabilitation of Offenders Act 1974 that provides for certain convictions to become ‘spent’ after fixed periods of time.
Where a person fails to declare a conviction or pending prosecution or provides misleading information about a conviction (for example where a person declares they received a non-custodial sentence when it is apparent, they received a custodial sentence), you must consider whether the application should be refused on the basis of the conviction as well as on deception grounds.
Suspended and concurrent or consecutive sentences
Suspended sentences are treated as non custodial sentences. Unles they are activated. When someone re- offended or did not comply with the conditions of his sentence, their sentence becomes custodial and must be declared as such.
When sentences run concurrently, the person serves all the sentences at the same time. For example, a sentence of 9 months imprisonment served concurrently with a sentence of 6 months imprisonment would not be considered to be a sentence of 12 months or more.
When sentences run consecutively, the person has to finish serving the sentence for one offence before they start serving the sentence for any other offence. For example, a sentence of 9 months imprisonment served consecutively with a sentence of 6 months imprisonment must be treated the same as one 15-month sentence.
Sentences and criminal convictions outside of the UK
Any overseas conviction or non-custodial sentence is treated in the same way as one imposed in the UK. Only sentences for crimes that are not considered as such in the UK are not taken into account. Those may for example include sentences for homosexuality or for political reasons. For example trade union activism, environmental activism etc.
Nevertheless, the guidance states:
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 consider what that offence indicates about the person’s character. A willingness to disobey the law in another country may be relevant even if their conduct would have been lawful in the UK.
Therefore, those sentences will be assessed by the caseworker and still may have an impact on the application.
Persistent offenders and UK citizenship application
What is a persistent offender. Perrsistent offender is defined as a repeat offender who shows a pattern of offending over a period of time, demonstrating a particular disregard for the law. This can mean a series of offences committed in a fairly short timeframe or offences which escalate in seriousness over time, or a long history of minor offences for the same behaviour which demonstrate a clear disregard for the law.
The concept of persistent offender is not important from the point of view of someone who received a long sentence that disqualifies his application. However, it is of an utmost importance to those who have not received such sentence or the sentence is lower than the threshold for refusal. Even someone who has not been sentenced to prison can have his application refused.
Those who consistently received out-of-court disposals such as fines, community orders, or suspended sentences which, taken individually, would not normally be a reason for refusal can have citizenship applications refused by the Home Office.
Persistent offender assesment by the Home Office
Persistent offender concept is a part of good character assesment of the applicant. It is not related to criminality grounds of refusal per see. Home Office caseworkers follow few basic rules while assesing an application:
- the number and frequency of offences committed and the timescale over which they were committed
- the seriousness of those offences and the impact they had on the public
- any pattern in the offending and whether the offences have escalated in seriousness
- whether they have shown a particular disregard for the law
Simply speaking, persistent offender is someone who commits a lot of small offences in a short time. Or his offences show tendency to grow in seriousnes, for example from public disorder to an assault.
More detalied look at the traffic offences and their impact on citizenship applications is provided on a separate webpage.
Offences which cause serious harm
All applications for UK citizenship where the person has committed a criminal offence, or offences, which caused serious harm, will normally be refused.
How serious harm is defined: Serious harm is an offence that that has caused serious physical or psychological harm to a victim or victims that remains ongoing, or that has contributed to a widespread problem that causes serious harm to a community or to society in general.
When assessing an offence caseworker will look at offender management reports and any sentencing remarks made by the judge relating to the impact on the victim.
Even in case of offenders with sentences of less than 12 months, if there was serious harm inflicted the application will be refused.
Criminal behaviour related to:
- drug-related offences
- sexual offences,
- hate crime
- racially or religiously motivated offences
will be considered as causing serious harm and treated accordingly in citizenship applications. Resulting in refusal of the application.
When considering whether the person has committed a criminal offence, or offences,
which have caused serious harm,the caseworker will take into account
length of time passed since the offence or offences occurred. For example, where a
single offence of this nature was committed a long time ago, it may be also
appropriate to consider whether there are mitigating circumstances that might
support an exceptional grant.
Sexual offences and citizenship applications
Sex Offenders Register
Law requires a person to notify their local police force of
their name, address and other details, including any changes to those details, if, in
respect of certain sexual offences, they are either:
- convicted of the offence
- found not guilty of the offence by reason of insanity
- found to be under a disability and to have done the act they are charged with
- (in England, Wales or Northern Ireland) cautioned for the offence
Notifying is compulsory, whether the crime was committed in the UK or abroad.
As long a person is on the register his or hers application for citizenship will be refused.
The time a person is on the register depends on the case.
Other measures against sexual offenders
There are other actions that authorities can take against offenders. Those are:
- Sexual Harm Prevention Orders – where the person has been convicted or cautioned for a sexual or violent offence and poses a risk of sexual harm to the public in the UK and/ or children or vulnerable adults abroad
- Sexual Risk Orders – where the person poses a risk of harm to the public in the UK and/ or children or vulnerable adults abroad, including individuals without a relevant conviction or caution
- Notification Orders – where the person has been convicted or cautioned outside the UK for a sexual offence
- Sexual Offences Prevention Orders (SOPO) – where the order is necessary to protect the public (or a specific person) from sexual harm from the offender.
- Foreign Travel Orders – where the order is necessary to protect children (or a specific child) from sexual harm abroad
- Risk of Sexual Harm Orders (RSHO) – where it is believed that the person may engage in certain specified activities of a sexual nature
Applications from the people who are subject to those measures will also be refused, for as long as they are subject to them.
Even after offender has been taken off the register he can still be refused citizenship on the basis of serious harm.
Exceptions to the criminality requirement
There are few exceptions when the good character including criminality do not apply, and we list those below. Although those British Citizenship application categories are quite rare, it is useful to know that good character does not apply to them.
- the statelessness provisions in Schedule 2 of the British Nationality Act (BNA) 1981
- the following sections of the BNA 1981:
o 4B, 4C, 4G, 4H, 4I, 17A, 17B, 17D, 17E, 17F, 17H
o 4F – person unable to be registered under other provisions of this Act, on the basis that the person would be entitled to register under paragraph 4 or 5 of Schedule 2 to the BNA 1981
o 4K – apart from where the person qualifies on the basis that they would have been able to become a British overseas territories citizen (BOTC) through registration under sections 15(3), 17(2) and 17(5) of the BNA 1981
o 4L – where a person would have had an automatic claim
o 17C – apart from where the person qualifies on the basis that they would have been able to become a BOTC through registration under sections 15(3), 17(2) and 17(5) of the BNA 1981
o 17I – where a person would have had an automatic claim