Conor Kavanagh, correspondent for the UK’s leading organisation of immigration lawyers the Immigration Advice Service, analyses the UK’s good character requirement for citizenship applicants.
In the years leading up to and following the 2016 EU referendum, immigration has become an all-encompassing topic in British politics. The main focus of the Leave campaign was this issue, with many feeling the whole referendum was less about general issues surrounding the EU and more a vote for or against immigration. The 2010 Conservative-Liberal Democrat coalition and successive governments have overseen numerous changes to the immigration system which have only served to make the UK a hostile place for migrants to live and work.
One key immigration change came in 2014. The good character requirement is one that all migrants over the age of 10 must now meet to gain settlement of citizenship in the UK. However, the 1981 British Nationality Act provides no concrete definition of how this ‘character’ is to be determined. As a result, the Home Office constructed their own outline of what constitutes a ‘good’ character; comprising more obvious factors which would disqualify someone from meeting the requirement such as potential citizens having links to criminals or terrorists, as wells as smaller infractions like having a history of non-payment of bills, bankruptcy, liquidation and debt.
The good character requirement has subsequently established itself a reputation. In 2018, 1,697 highly skilled migrants were threatened with deportation. Many of these migrants were also given a 322(5) paragraph in their passport which implies the holder is a terrorist and a threat to national security and prohibits them from travelling to most countries. The individual is also banned from working, buying or renting property in the UK and is denied the ability to seek medical treatment. Even in the cases where the migrant has an employed account, the Home Office still determined that all of the 1,697 were found to be deliberately deceptive and misleading. Many of these migrants have lived in the UK for decades and have British-born children.
This seemingly harsh punishment has been scrutinised by the legal system and four of these cases were taken to the Court of Appeal. The Court deemed the terrorism associated paragraph added to the migrants’ passports was legally ‘flawed’; and in one of the cases found distinct unlawfulness since the Home Office had failed to find an explicit example of dishonesty on the migrant’s part.
The good character requirement has also created another scandal. In 2014, the Home Office accused 34,000 international students of cheating in English language tests which they were required to take to renew their visas. The ‘guilty’ students were forced to abandon their studies and return home. While a BBC Panorama investigation did uncover instances of cheating which prompted the Home Office action, it is widely regarded that the response was disproportionate to the actual amount of cheating. Currently, the Home Office is facing 300 Court of Appeal legal challenges from foreign students who believe they were wrongly accused of cheating. There has been such a significant legal challenge that in 2017 the Home Office created a special team to tackle the backlog.
Government looking to tighten and expand already unfair system
The government’s changes to the immigration system, including the good character requirement, have already created a more hostile atmosphere for current and potential migrants to the UK. This is only going to get worse with the upcoming changes planned for a post-Brexit Britain. Generally speaking, the current freedom of movement from the EU will be replaced by ‘skills-based’ immigration with a general tightening of nationality and visa requirements. The obviously flawed good character requirement will also be tightened and expanded to include migrants from the European Union.
The British Nationality Act of 1981 states that applicants must not have been in breach of immigration laws during a period of three to five years before they apply for British citizenship or settlement. However, the recent changes mean any migrant who has ever overstayed their visa within the last ten years or failed to declare past wrongdoings will have their application automatically refused. The only real exception to this is if the applicant can prove this was not their fault, perhaps citing issues around children or domestic abuse. But due to the already harsh nature of the good character requirement, it is hard to imagine the government will be particularly lenient after the changes.
This failure to report past wrongdoings can also apply to other areas. Something like not paying a parking offence could be used to argue that the migrant is deceptive and used to show they do not have a ‘good character’. Minor crimes like this must be reported even if they were committed far in the past; as crimes are never seen as wholly ‘spent’ in the eyes of nationality law. Another element of this is that caseworkers assessing ‘good’ character have a wide margin of discretion when it comes to these assessments which can exacerbate the punishment of largely innocent people.
The implementation of the good character requirement is already extremely flawed, often marking down innocent people with paragraphs on their passports that paint them as terrorists and kicking out tens of thousands of students from their studies in the country for allegedly cheating the system. These problems will only get worse as this requirement is expanded to migrants from the European Union combined with it being generally tightened. It will continue this current Government’s trend of making the UK far more unwelcoming to migrants.