Amber wrote:British Citizenship – Good Character Requirement Common Questions
Many people are asking similar questions relating to the ‘Good Character’ requirement so I thought I would post this.
As per the
‘Standard requirements for naturalisation’ the applicant must be of ‘Good Character’ (if aged 10+).
The applicant will be exempt from the ‘Good Character’ requirement (rarely) if:
a. an application is made under statelessness provisions in Schedule 2 of the British Nationality Act 1981 (the Act), or;
b. an application is made under s.4B of the Act from an eligible applicant
There is no definition of ‘Good Character’ in British Nationality Act 1981 but the Secretary of State must be satisfied that the applicant is of good character on the balance of probabilities. Therefore, the consideration of whether the applicant is of ‘Good Character’ will be based on the applicant’s criminal record and other relevant information.
Great post
I would add to this if having a small earnings exception could play against the naturalisation application.
I will break the common questions into
‘criminal issues’ (Qs 1-15) and
‘other issues’ (Q15 onwards).
Criminal Issues:
The ‘Good Character ‘requirement is not bound by the Rehabilitation of Offenders Act 1974 (the 1974 Act). Therefore, the fact that a conviction (or equivalent) is ‘spent’ is no longer the important factor. For example, a ‘simple’ police caution will be immediately ‘spent’ under the 1974 Act but for the ‘Good Character’ requirement the police caution can still create a refusal for 3 years after it is given.
Q1 - Custodial convictions
Custodial convictions will result in a refusal for a prescribed period as follows:
Imprisonment of 4 or more years = indefinite refusal (it does not matter when the conviction was given)
Imprisonment of between 12 months and 4 years = refusal for 15 years from the end of the sentence
Imprisonment of up to 12 months = refusal for 7 years from the end of the sentence
Note: it has now been decided that a 'suspended sentence' will be treated akin to a non-custodial sentence, unless 'activated'.
Q2 - Non-custodial convictions
If you have been convicted for a non-custodial offence then your application will be refused for 3 years since the conviction was given but
see Q8 and Q8A.
Q3 - What is a non-custodial conviction?
A non-custodial conviction will include instances where the defendant has been convicted at court but not sent to prison (e.g. issued a fine but see the note in question 1) and will also include simple and conditional police cautions and certain hospital orders. If you have multiple cautions this may also be grounds for refusal even if 3 years has lapsed.
Also note that if you plead guilty by post for a traffic offence or are found guilty at court for a (even minor) traffic offence, this will amount to a conviction.
I have been arrested or charged after my application was submitted do I need to inform the Home Office?
You must inform the Home Office if you are arrested or charged with an offence after you make your application and while the application is under consideration. You risk prosecution under section 46 of the British Nationality Act 1981 if you do not do so. It may cause your application to be placed on hold whilst your criminal case is determined. If that results in a conviction or akin (e.g. police caution) you will likely be refused and have to wait as above until you can reapply.
Q4 - What about a Fixed Penalty Notice [FPN], a Procurator Fiscal Fine and an ASBO?
Q5 - FPN
A FPN (often given for minor motoring offences such as speeding) is not a conviction and will not be grounds for refusal unless the applicant has received numerous FPNs in the last 12 months. Therefore, you should wait until you have
no more one FPN in the last 12 months before applying.
If you go to court for a FPN because you do not pay the fine or you challenge the FPN and the FPN is upheld (found guilty) this will then be classed as a conviction and may lead to (at a minimum) a refusal for 3 years.
Note: penalty charge notices and notices for disorder (PCN/PND)
may be considered as a FPN for the purpose of ‘Good Character’ as per section 3.7 in form AN. However, a PCN/PND should have no bearing on the application unless PCNs/PNDs are numerous. Confirmation on how PCNs affect Good Character is being sought and this will be updated in due course.
Q6 - Fiscal Fines (Scotland)
If you have been given a fiscal fine to deal with an alleged offence this will not be classed as a conviction. However, the caseworker will consider (with discretion) the offence that was alleged. If you do not pay your fiscal fine and it ends up at court and is upheld, this will then be considered as a conviction and may lead to (at a minimum) a refusal for 3 years.
Q7 - ASBO
An ASBO is a civil issue not criminal therefore, will not be considered as a conviction unless it is breached (this can then constitute a criminal conviction).
If you (as a parent) have a child/children who has a conviction or ABSO this may indicate that you have been complicit in their activities or particularly negligent and thus are not of Good Character.
Q8 - I have one non-custodial sentence but 3 years has not lapsed, will they still refuse me?
If you have a single (one) conviction (non-custodial) and it occurred within the first 2 years of the 3 (i.e. you have had no offences within the last 12 months), there are strong countervailing factors which suggest that you are of good character in all other regards and the decision to refuse would be disproportionate then it
may be deemed an exceptional case and your application may be granted (exceptional grant under section 10(b) of
Chapter 18, Annex D) despite 3 years not lapsing since the date of conviction. It may be wise to only try this where the non-custodial sentence was for a 'minor offence' and did not involve drugs or violence for example. See also, Q8A.
Q8A - Can my application still be refused even though my non-custodial sentence has lapsed?
Under section 3.8 of
Chapter 18, Annex D, an application may still be refused even though you have an non-custodial sentence or out-of-court disposal that was given more than 3 years ago. This new guidance allows the decision maker to take into account a number of factors* which may bring into doubt the character of the applicant and allow for a refusal. It may be that sentences/out-of-court disposals for more serious offences such as, a caution for manslaughter or rape may be a bar for a considerably longer period than 3 years.
*Factors to be considered would include:
-The
number of non-custodial sentences/out-of-court disposals on the applicants record.
-The
time that has lapsed since the applicant last received a non-custodial sentence/out-of-court disposal.
-The
nature of the offence(s) - minor or more serious and whether drugs or violence are involved.
-The
age of the applicant at the time s(he) committed the offence(s)
-Any other
aggravating or mitigating factor(s), i.e. racially, religiously or homophobic related offences will be
aggravating factors. Mental/Physical illness may be a mitigating factor.
Q9 - Sexual offences
If you have a conviction for a sexual offence and are subject to reporting notifications then you will normally be refused. There are other instances where a sexual offence can lead to refusal so you would benefit from professional advice prior to applying if you have one.
Q10 - I was convicted abroad does this count?
Convictions aboard will be considered in line with a conviction in the UK as above but see Q10A.
Q10A - My conviction abroad is not recognised in the UK will it still create a refusal?
Under section 10(a) of
Chapter 18, Annex D, if your conviction is for an offence which is
not recognised in the UK and there is
no comparable offence, then you should fall under the
exceptional grant and your application should
not be refused for this conviction alone.
Q11 - Should I declare my conviction even if it is spent?
You should declare all spent and unspent convictions. You should also include information relating to any FPNs (that are still on your licence or have been given in the last 12 months) and Fiscal Fines. If you have any endorsements on your driving licence you must provide the paper counterpart.
In addition section 3.18 now states:
Have you ever engaged in any other activities which might indicate that you may not be considered a person of good character?
This may include instances where a person did not receive a conviction or out of court disposal.
Q12 - I did not include my conviction will I be refused?
It depends on the intent. If you concealed minor convictions and were refused because of this, you will likely be refused citizenship for a 10 year period.
If you did not know you had a conviction then you should not be refused on grounds of deception.
There are other instances where deception can result in a 10 year refusal for example, bogus marriages, falsification of KOLL requirements etc….
You should also be aware that to knowingly provide false information may result in criminal prosecution.
Q13 - I have a pending prosecution should I apply?
It is unlikely that you would be granted citizenship if you have a pending prosecution. If you choose to apply with a pending prosecution you should inform the HO of the pending prosecution.
Q14 - International crimes and terrorism
If you have been involved with international crimes such as war crimes or genocide or terrorism you should seek professional advice as a refusal is likely.
Other Issues
You should disclose any relevant information that may cast doubt on your character. Apart from criminal convictions this is mainly looking at civil issues.
What checks are made by the HO (non criminal)?
Credit checks are not carried out for the purpose of assessing good character but the Home Office will check an applicant’s financial background with the police and other government departments. For example, checks will be conducted to ascertain if the applicant has paid income tax, National Insurance contributions, Council Tax and whether they have any civil penalties or judgements.
Civil Issues
You must give details of any relevant civil issues. This can include civil penalties under the UK Immigration Acts, County Court Judgements (CCJs), Bankruptcy, Liquidation, DWP civil penalties, HMRC fines etc….
Q15 - I was made bankrupt will this cause a refusal?
You will not normally be granted citizenship if your bankruptcy has not been discharged. Even when the bankruptcy has been discharged you may have to wait at least 10 years (since being discharged) before you will be successful unless; the bankruptcy was annulled or it was through little or no fault of your own or you were declared bankrupt abroad.
Q16 - My company was liquidated will this affect my application?
It depends on the reason for the liquidation. If it was through little or no fault of your own e.g. your business has been severely affected by an economic downturn then your application should not be refused. However, if not, you may have to wait at least 10 years since the liquidation before your application will be successful.
Q17 - I have a CCJ will this cause a refusal?
A CCJ is not a ground on its own to refuse the application. However, the fact that you have a CCJ may be evidence that you are deliberately and recklessly building up debts with no intention of paying them back which, is a grounds for refusal. Therefore, if you have a CCJ you should include evidence that you are making repayments or that the CCJ has been paid/settled.
You can check whether you have a CCJ registered against you by visiting
Trust Online. Although, if your CCJ is settled within one month of being issued it may not be registered.
If you cannot afford to pay your CCJ you can
apply to the Court to vary the instalments. See Q19 if you are struggling to pay your debts.
Q18 - I have an IVA will this lead to a refusal?
Providing you are making repayments this should not indicate that you are deliberately and recklessly building up debts with no intention of paying them back and should not cause a refusal.
Q19 - I have debts will this lead to a refusal?
Being in debt (even heavily) will alone, not be a grounds for refusal unless the caseworker believes that you are deliberately and recklessly building up debts with no intention of paying them back. If you are making repayments (even if token payments) this should be enough to rebut any assumption. Therefore, you should ensure that you are making some payment each month, if you need help to arrange this see the charities below.
If you are struggling to pay your debts you should seek free, impartial and confidential advice from the National Debtline or Step Change or your local Citizens Advice Bureau.
Q20 - I did not pay my council tax will this lead to a refusal?
If you fail to pay your council tax this may lead to a refusal. However, if you have arranged with the local authority to pay the council tax arrears (or have paid them back) then you should not be refused.
Q21 - I am unemployed will this lead to a refusal?
There is no requirement that you need to be employed therefore, this should not lead to a refusal.
Q22 - I have not paid my taxes will this case a problem?
If you have tax arrears/HMRC penalties you should make arrangements to repay them or dispute them if you do not think you are liable. However, if you have evaded paying your taxes this may result in a refusal (and possible prosecution). Note: that if you are employed (even cash in hand), your employer is responsible for paying your taxes and NI contributions.
Q23 - I am claiming public funds will I be refused?
Claiming public funds that you are entitled to is fine and will not be grounds for refusal.
However, if you are claiming public funds
which you are not entitled to this is likely to result in a refusal. Although, if you claimed public funds you were not entitled to, but there was no deliberate attempt to deceive the authorities, this should not result in a refusal.
Q24 - other grounds for refusal
There are other grounds for refusing citizenship applications (e.g. hiring illegal workers etc….) and if you feel that your circumstances may cast doubt on your character and have not been answered here, then start a new thread and/or seek professional advice.
