No certainty, no rehabilitation — the new rules on becoming British and criminal convictions

When someone applies to ‘naturalise’ as a British citizen, they need to meet a ‘good character’ rule. This includes consideration of criminality. The guidance on this changed in July 2023 to be much less clear on which sentences will be a barrier to becoming British. John Donkersley looks at whether you can provide advice on this with any certainty, or is it too complex?

It’s clear that successive British governments have regarded the acquisition of British citizenship by the citizens of another country as a privilege and not a right. It was never earned purely by getting the right to stay permanently in the UK.

Good character

Except for a few routes to citizenship, an applicant for British citizenship needs to be of good character. The exceptions are for

• the stateless
• routes that remedy historical sexism in the law that robbed many of the right to be born British
• children under 10

The good character rule is in Schedule 1, para 1(b) of the British Nationality Act 1981. That’s about all there is for the legislative framework for the test.

There’s no power or duty or need for the Home Secretary to make regulations defining good character. They can set out whatever they consider to be good or bad character in guidance to their caseworkers.

History

Many years ago, sentences up to 30 months imprisonment were disregarded for naturalisation purposes when they became ‘spent’ under the Rehabilitation of Offenders Act. An offence becomes ‘spent’ a set number of years after the end of the custodial sentence or conviction. An offender didn’t need to disclose their ‘spent’ conviction when they applied for work or study. As a result, they could be rehabilitated into society.

The Home Secretary previously published guidance which adopted these set periods. There were exceptions to allow naturalisation either

• before the conviction would become spent
• immediately, for certain minor offences — for instance a speeding fine
• for some sentences longer than 30 months in prison — but only after a set ‘clear period’ of years

This remained the case, with tweaks, until recently. These ‘clear’ periods were set out in the guidance and in the booklet for applicants. The public knew the position and an adviser could know with certainty what to tell their client. For instance if you had a fine you couldn’t apply until a clear period of 3 years after sentencing. Applicants could look forward to a fixed date in the future when — for all but the most serious offences — they could apply to naturalise without it being a barrier.

What’s changed?

The July 2023 changes to the good character guidance brought it into line with the criminality provisions in part 9 of the immigration rules. Those provide the grounds on which a visa application can be refused. For applications submitted before the 31 July 2023, the old rules continue to apply.

There is logic behind preventing someone who offends after getting indefinite permission to stay from subsequently getting British citizenship. But, someone who is now settled has a bigger stake in the UK. They may have put down roots, and have ties through work, family and society as a whole. There is often no question of deporting them so they are here for good.

The good character guidance does also apply to those convictions handed down before a grant of indefinite leave, but ignored for that application.

The provisions in part 9 are simple. An application must be refused where the applicant

“(a) has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of 12 months or more; or

(b) is a persistent offender who shows a particular disregard for the law; or

(c ) has committed a criminal offence, or offences, which caused serious harm.”

It goes on to say that an application ‘may’ be refused where they have other sentences, including non-custodial sentences (for instance a fine) and out of court disposals (for instance a police caution)..

The good character guidance for naturalisation mirrors this:

“A person will normally be refused if they:

- 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

- have committed a sexual offence or their details are recorded by the police on a register”

You will see that the insertion of the word ‘normally’ adds some degree of discretion. Additionally, sex offenders are also refused regardless of the penalty. The guidance goes on to say:

“A person must be refused if they have:

- a custodial sentence of less than 12 months

- a non-custodial sentence or out-of-court disposal recorded on their criminal record

and you are not satisfied, on the balance of probabilities, that they are of good Character.” (my emphasis)

Except for applicants in Northern Ireland (which keeps them), any sort of link with ‘spent’ convictions has gone.

The guidance actually goes further than part 9 of the Immigration Rules. It uses ‘must’ rather than ‘may’ and places the burden of proof on the applicant to prove that they are of good character despite their conviction.

The guidance discusses what a ‘balance of probabilities’ means. However, a lot of potential applicants with convictions will see the phrase ‘must be refused’. They may then decide not to risk £1,500 on the (non-returnable parts of the) application fee on such a gamble.

The balance of probabilities

The balance of probabilities test for good character allows for inconsistent decision making. Decisions could reflect the values and considerations of individual caseworkers.

Inevitably, using this discretion will take longer for the Home Office caseworker. They’ll need to look at additional information, consider representations and check decisions with higher level managers. Delays are likely to increase. I suspect that there will be no political will or resources to reduce delays because of a view that criminals are undeserving of a quick decision. It will be a further sanction for their crime.

Alternatively, caseworkers may develop their own criteria for when they’ll use their discretion.

It opens the possibility that someone could naturalise earlier than the ‘clear’ periods that were previously in the guidance. I doubt that this will be the case in reality.

The guidance gives some steer on the factors to be considered:

• negative factors around criminality — the seriousness of the offence and the harm caused. Anti-social behaviour, drug use, or violence can be bad character
• the length of time since offending — although even an old offence can be evidence of their character. Additionally, an applicant ‘will not meet the good character requirement on the sole basis of non-custodial offences or out of court disposals where the offences took place recently’. It may be best to wait three years in line with the previous policy
• the number of offences — more is bad
• the period over which offences were committed. The guidance states that a series of minor offences in a short space of time may show a pattern of sustained anti-social behaviour or disregard for the law
• an escalation in the seriousness of offending. A conviction for theft which then escalates to one for burglary would show a pattern of worsening character. It would be more likely to lead to refusal or a longer wait
• the Applicant’s age at the date of conviction. ‘Isolated youthful indiscretions’ will not show bad character if they’ve been law abiding since
• exceptional or other circumstances. This catch-all can include other things going on in their life at the time of their conviction. It may include relationship breakdown, mental health problems and financial pressures

The Home Office will also take into account mitigating factors, examples given include

• genuine, meaningful attempts to change their behaviour and comply with the law
• a long period of time with no offending
• tackling the cause of the offending, such as drug rehabilitation treatment or anger management courses
• voluntary or charity work, or promoting the reduction of crime

These are all indicative. It’s open to applicants to bring up other factors. They might be making efforts to address a debt problem, reconciling with family members, or paying compensation to victims.

Pending prosecutions

The Home Office will also find out about pending prosecutions. An adviser should urge their client to inform the Home Office, even if charged after applying. They’ll delay a decision until they know the outcome, unless the sentence would be unlikely to affect the nationality decision. As it’s now hard to say what convictions would now affect this decision, the client may be best waiting until they are acquitted or sentenced.

Suspected criminal activity

This is not new. The guidance says that they will look at whether:

“a person is known to have committed or is strongly suspected of criminal activity, but for various reasons has not been charged or convicted, or charges have been dropped or the person acquitted. For example, cases may be settled out of court, or a prosecution may be considered no longer sustainable due to insufficient or inadmissible evidence.

“Careful consideration should be taken of the nature of the information and the reliability of the source.

“Where there is firm and convincing information to suggest that a person is a knowing and active participant in serious crime, for example, drug trafficking, the application will normally be refused.”

I have some concern over the way that the Home Office approaches this. It could be seen as second-guessing the courts. An application might be refused on character grounds despite the prosecution ending. The caseworker may still regard the applicant as guilty where evidence was gathered illegally or was unreliable. It allows the Home Office to apply a penalty where the courts did not.

It might also cause an acquitted applicant to hesitate in applying, even where their innocence was clear.

The same can be said about the — mostly redacted — sections in the guidance on association with criminals and gangs.

Policy issues

Decisions on criminality and good character now have no real link with the rehabilitation of an offender. Rehabilitation is reduced to how a caseworker views the moral character of the applicant.

It strikes me that the guidance on this is akin to the criminal courts’ sentencing guidelines, but administered by civil servants rather than legally trained and experienced judges. It will be a hard job to balance the rights of an individual against how society views their offending.

Maybe there is a political element to this — in effect, if not by intention. The press or public may think that an applicant has committed distasteful crimes. If the Home Secretary is questioned about how this person was approved for citizenship, they can now put this down to an individual decision by a caseworker. It can be said that the caseworker got it wrong, rather than the responsibility being attributed to a scheme for which the politician is responsible.

What should an adviser do?

Obviously an adviser can’t tell a client not to disclose convictions. That breaches the codes of the Office of the Immigration Services Commissioner (OISC) which regulate immigration advice.

The Home Office searches criminal records anyway, so it’s pointless. Even fixed penalty notices and police cautions should be disclosed. If in doubt that it’s criminal — disclose it! Indeed, if a conviction isn’t disclosed they’ll be refused on grounds of deception, even if that conviction wouldn’t normally have led to refusal.

Advisers should continue to ask about convictions both in the UK and abroad. It’s worth asking specifically about fines for motoring offences, as these might not be considered crimes in their previous country of residence.

An adviser will need to be honest about the risks of refusal for a conviction. Tell the client that if they are refused there will be no refund, other than the £80 ceremony fee. Those risks might be small for someone with an ancient and sole conviction for teenage shoplifting. But can an adviser really predict the risks of refusal in the majority of cases. If their client has a couple of fines for assault 3–4 years ago — that were disregarded under the old policy — is it safe now to apply?

Revocation

As we are discussing criminality, I should add that the Home Office has powers to revoke British nationality where it would not leave the person stateless. The Home Secretary can do this where it is conducive to the public good.

So far, it’s been used in cases of terrorism or very serious offences such as child sexual abuse. More recently, the Home Secretary revoked it for a 17 month sentence for offences including impersonating a doctor.

Conclusion

Until 1857 the British courts could sentence British criminals to transportation. In the 20th century courts could recommend deportation as part of the sentence if you weren’t British. The first has gone. The latter is much rarer since the law was changed to make deportation automatic for sentences of 4 years imprisonment or more.

The idea of exporting criminals or withholding their privileges continues. It’s mostly reserved for serious offences, but the threshold has dropped over time.

The new nationality policy is a further example of this trend. The new guidance removes the idea of a fixed period for the rehabilitation of offenders.

As a result, though advisers will mostly see applicants with lesser convictions, they can no longer advise with certainty about whether a specific offence or sentence will cause the refusal of a naturalisation application.

Nationality applications from an ex-offender will now be complex. This means they will ideally need help from a solicitor or from an adviser regulated at OISC level 2. These are in scarce supply or costly, and it will also impact the ability of Citizens Advice to help — where the majority of advisers are regulated at OISC level 1.

John Donkersley is Senior Immigration Expert at Citizens Advice.

The information in this article is correct as of the date of publication. Unfortunately, we are unable to respond to comments left on the medium site — please contact expertadvicesupport@citizensadvice.org.uk if you wish to give feedback on an article.