A recent report by the Independent Chief Inspector of Borders and Immigration has raised concerns over the application by the Secretary of the State for the Home Department (“SSHD”) of the ‘good character’ requirement to ‘young persons’ applying to register as British citizens on a discretionary basis under the British Nationality Act 1981.
The primary concern was the fact that the requirement is currently applied with the same standards to both adults and young persons applying for British citizenship.
A “young person” is anyone aged between 10 and 17 years old, which is consistent with the age of criminal responsibility in the UK. When a young person applies to be registered as a British citizen at the SSHD’s discretion, therefore, their character is taken into account as if they were an adult.
There is no definition of ‘good character’ in the British Nationality Act 1981 and therefore no statutory guidance as to how this should be interpreted or applied. However, the policy guidance on good character requirements, which caseworkers use to decide applications, can be found in Annex D to Chapter 18 of the Nationality Instructions. The interpretation of ‘good character’ takes into account both criminal convictions and breaches of immigration law, among other considerations.
The Courts have previously highlighted that in assessing ‘good character’ the SSHD should consider all aspects of a person’s character, and the presence or absence of a criminal conviction is not the only relevant point but rather the whole background should be looked at (R (Hiri) v SSHD [2014]; (SA) v SSHD [2015]).
The current guidance gives the decision-maker discretion to impose a ten-year restriction against applications of those found to have committed certain immigration offences or breaches, including young persons. Although this will normally be disregarded if the breach is by a dependant young person and it was outside of their control. The issue with young persons facing a ten-year restriction on registering as a British citizen is that it can prevent them from being successful in their applications while they are still minors. Therefore, their eligibility to become a British citizen may lapse as a result of the ten-year restriction.
The report bemoans the application of the ‘good character’ guidance to young persons without qualification and questions how the SSHD is meeting her responsibilities to safeguard and promote the welfare of children, and to have the best interests of the child as a primary consideration. The report concludes by recommending that the SSHD issue separate good character guidance for young persons. Any such guidance should, in particular, make clear what is within the discretion of the decision-maker, and ensure compliance with the SSHD’s responsibilities to children, according to the report.
The report also highlights other concerns for young persons applying to register as British citizens including the high fees for registration, and the lack of specific reasons given in refusal decisions. The report indicates these issues may be considered by the Chief Inspector in the future.
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