UK Nationality Applications and Previous Overstays

Question

I saw that the Home Office has published new guidance for people applying for British Nationality (March 2015).

Most notably, the section on good character has been profoundly expanded; it now includes things like simple cautions. The guidance also advises that applications will be subject to increased scrutiny on that basis.

Against that backdrop, there are lots of people who have committed minor immigration offenses like overstaying between successive applications or entering via Dublin when they weren't supposed to do that. In lots of cases the Home Office 'overlooked' the violation and granted the visa anyway. Other people have been granted leave outside the rules (for compassion or some other situation where circumstantial practicalities warranted granting a visa outside of the rules).

If they find that a person overstayed between successive applications on the Tiered route, can they refuse a nationality application DESPITE having granted leave previously? The guidance seems to indicate that this is a possibility. What other types of offenses that have been previously overlooked that might result in a refusal to naturalise an applicant?

Answer 1

As the UKVI published its Good character: nationality policy guidance on 27 July 2017, it seems a good time to take up the gauntlet thrown down by @GayotFow (albeit long overdue).

Annex D to chapter 18, in its very preface, makes clear:

There is no definition of ‘good character’ in the British Nationality Act 1981 (‘the BNA 1981’) and therefore no statutory guidance as to how this should be interpreted or applied

First, there are the basics of what can be counted against an applicant (1.3 Aspects of the Requirement):

• Failure to show respect for the law: any criminal behavior, whether suspected or convicted
• War crimes: in any way, shape or form, including involvement, association, crimes against humanity
• Financial impropriety: including failure to pay taxes, bankruptcy, fraud, concealing assets
• Notoriety: behavior and/or activities that risk the public order
• Dishonesty (the big one): deliberately dishonest or deceptive in their dealings with the UK Government, including ‘assisted in the evasion of immigration control, previously been deprived of citizenship.
• Anything else that cast doubts on an applicant’s character

Should an applicant fall short under any one of those points, it doesn’t bode well, when the guidance states:

The decision maker will not normally consider a person to be of good character if there is information to suggest [the above].

What this suggests is that any and all shortcomings, regardless of gravity, can and will be evaluated. This would include all of the examples in the question, what previously were viewed as minor and what may have been overlooked in the past, might impact the outcome.

In practical terms, a number of the considerations are apparent and understood to exhibit poor character: criminal activity of any measure, anywhere. Section 2 of the guidance is quite detailed, and discuss the finer points in addition to convictions. Those once viewed as less critical, could now be weighed more heavily, e.g., cautions, deferred sentences, admonitions, warnings, fines, reprimands.

Financial integrity and reputation continue to be indicators of character.

When evidence includes debt recklessly incurred, use of public funds when not entitled to them, unreasonable failure to pay taxes, deception to avoid paying the correct rate, it can may be difficult to overlook those objections.

Notoriety may prove an even greater challenge to overcome: poor behavior in their local community, even if wouldn’t rise to the level of criminal activity. And, in some instances, the behavior of the person’s child could be held against them, if it considered that the parent either was complicit or negligent.

None of those are new, or surprising; what is new and significantly raises the bar is immigration history, when:

• They had been deliberately dishonest or deceptive in their dealings with the UK Government; or
• They have assisted in the evasion of immigration control; or
• They have previously been deprived of citizenship.

In Section 9: Immigration Related Issues of the Annex D and reads as follows:

9.5 Illegal Entry
In circumstances where an applicant entered the UK illegally, an application for citizenship should normally be refused for a period of 10 years from the date of entry, if it is known. If it is not known, the period of 10 years starts from the date on which the person first brought themselves to or came to the attention of the Home Office.

9.6 Assisting Illegal Migration
The decision maker will normally refuse an application if there are grounds for believing that the person is currently, or has previously been, involved in an attempt to assist someone in the evasion of immigration control. This includes a person whose spouse’s/civil partner’s recent application for entry clearance has been refused on relationship grounds.

9.7 Evasion of immigration control
The decision maker will normally refuse an application if within the 10 years preceding the application the person has not been compliant with immigration requirements, including but not limited to having:

a. failed to report
b. failed to comply with any conditions imposed under the Immigration Acts
c. been detected working in the UK without permission

For refugees with no legal way of reaching the UK, it would mean a minimum of 10 years before they qualify, instead of six.

Colin Yeo, widely regarded for his expertise in UK immigration and asylum law (as @GayotFow notes), voiced his concerns in early 2015, in response to changes to the good character test which raised the bar significantly.

Good character citizenship criteria quietly tightened up

Tightening of British citizenship rules not aimed at refugees

Editorials such as this suggest that the above policies may be the subject of legal challenges. Accordingly, this answer is limited to 2017 and 2018 only.