On the 31st July 2023, the Home Office published new guidance in relation to the good character requirement for Naturalisation applications. This new guidance took immediate effect and was published with the government first giving notice of the changes on the 30th July 2023.
The new guidance represents a significant departure on how the Home Office will deal with an application where a person has a criminal record. The rules were introduced by Suella Braverman with a view to toughening up the Home Office's approach. She said:
"British citizenship is a privilege. Those who commit crimes shouldn't be able to enjoy the breadth of rights citizenship brings, including holding a British passport, voting and accessing free medical care from the NHS.
I am cracking down on abuse of the UK's immigration and nationality system, by introducing a tougher threshold so that serious criminals cannot gain British citizenship. This is the fair and right thing to do for our country."
The new rules are intended to align the approach to criminality in naturalisation applications with the approach to applications that are made under the Immigration Rules. Whilst the old system was very clear about when someone would be considered to be of good character, the new rules provide the Home Office a greater deal of discretion in how they are going to decide an application. This will make it doubly important to ensure that any applications involving an Applicant with a criminal record are well prepared.
For applications that were submitted before the 31st July 2023, the old rules continue to apply. These confirm:
When can apply?
Sentence of 4 years or more
Sentence of 12 months or more
15 years from the end of the sentence
Sentence of less than 12 months
10 years from the end of the sentence
3 years from the date of the sentence
As can be seen from the above table, working out when someone could apply for naturalisation usually involved a mathematical calculation based on the date and type of sentence received.
Under the new system, a new approach is taken.
The Home Office will normally refuse an application where someone fits within any of the following categories:
- They have a custodial sentence of 12 months or more in the UK or overseas
- They have consecutive sentences totalling at least months in the UK or overseas
- They are a persistent offender who shows a particular disregard for the law
- They have committed an offence which has caused serious harm
- They have committed a sexual offence or their details are recorded by the police on a register
If however a person has a custodial sentence of less than 12 months or a non-custodial sentence, then the application will be refused unless the Home Office is satisfies, on the 'balance of probabilities', that they are of good character.
Can someone succeed in an application where they would 'normally' be refused
It is possible for a person to benefit from an 'exceptional grant' even where you would normally expect the Home Office to refuse their application. This would apply, for example, to someone who was sentenced to 12 months or greater imprisonment.
The guidance gives three examples of when they may make an 'exceptional grant' which gives a clue as to how these types of applications will be approached. The examples of when an exceptional grant would be made are:
- The person's criminal conviction is for an offence which is not recognised in the UK (eg for homosexuality or for membership of a trade union)
- A person in their late sixties has offending committed a long time ago, which would normally require refusal of citizenship due to a 2-year custodial sentence, but over 40 years have passed since the last conviction with no further offending or other adverse factors. When balanced against the earlier offending, the significant proportion of their UK residency that was spent in compliance with the law and avoiding wider character concerns, indicates that they are now of good character
- A person with one single 14-month custodial sentence, from 12 years ago when they were aged 19, which would normally require refusal of citizenship under the sentence-based threshold. Since their conviction they have committed to reform by actively engaging with youth and mental health charities and promoting the reduction of youth crime, indicative that on a balance of probabilities they are now of good character
It can be seen from the examples provided, that the threshold is a high one to meet. However, the Home Office will always have a discretion in these types of cases and, where there are special or exceptional circumstances, then it may be that an application can succeed.
Balance of Probabilities Test for less serious offences
Where a person has a custodial sentence of less than 12 months, or a non-custodial sentence, then the Home Office will apply a 'balance of probabilities' test to determine whether they are considered to be of good character. This, in summary, will involve balancing the individual circumstances of the matter. In particular, consideration will be given to the following factors:
- Length of time since the offences occurred
- The number of offences
- Period over which the offences were committed
- The seriousness of the offence
- Any escalation in the seriousness of the offences
- The nature of the offences
- The Applicant's age at the date of the conviction
- Whether there are exception or other circumstances
- Any other mitigating factors
The Home Office will also take into account other factors that may be relevant to a person's good character.
It will be important when preparing applications to provide evidence that addresses these factors, and puts forward the reasons why a person should be considered of good character.