Good character requirements for British citizenship
Applications for naturalisation are usually governed by the British Nationality Act 1981, which until 2015 provided the legal framework for considering applications for naturalisation. The introduction of the revised Good Character requirement, however, adds a layer of complexity, confusion and uncertainty to the question of whether an applicant meets the requirements to be naturalised as a British citizen.
How to define ‘Good Character’?
There is no hard-and-fast definition of ‘Good Character’ in the British Nationality Act 1981 and there is no firm statutory guidance on how to interpret ‘good character’. Instead, those applying must refer to the Home Office published guidance on ‘good character’ set out at Annex D to chapter 18: The good character requirement, which is published on the Home Office’s website.
The Home Office’s guidance provides a non-exhaustive list of issues may cast doubt on a person’s good character such as:
- The applicant not respecting and/or not abiding by the law;
- Having been involved in or associated with war crimes, crimes against humanity or genocide, terrorism or other actions that are considered not to be conducive to the public good;
- Their financial affairs not being in appropriate order;
- Their engaging in notorious activities that may cast doubt on their good character;
- Their having been dishonest or deceptive in their dealings with the UK government;
- Their having assisted in the evasion of the immigration control.
It is clear, at a glance, that the non-exhaustive list of issues that may lead to a conclusion that a person may not be “of good character” is very vaguely termed and consequently incredibly arbitrary. In essence, the Annex D to chapter 18: The good character requirement allows the Home Office to decide on a whim whom it considers to be a person of good character.
Furthermore, vaguely drafted non-exhaustive examples provided at Chapter 18 make it easy for the Home Office to evade judicial scrutiny when it does arbitrarily point to some as not being of good character. So, this begs the question of whether the good character requirement provisions are lawful.
Lawfulness of the ‘good character’ requirement
There are instances where an applicant for British citizenship may rightly be held as not being of good character – for example, where such an applicant has been involved in persistent serious criminality or has engaged in terrorism-related activities. In those circumstances, the Home Office’s categorisation of such people as not being of good character can be justified on grounds of public policy considerations such as protecting the UK public from the risks that may arise from their being bestowed with British citizenship. The subtext to this is, of course, the fact that those granted British citizenship benefit from a higher degree of protection in the event of their committing serious offences, whereas a person with Indefinite Leave to Remain is still a foreign citizen and can have their ILR revoked under statute if they were to commit a serious offence.
Those are, of course, extreme examples of when it is overwhelming in the public interest to have applications for naturalisation, by serious criminals, denied in order to protect the public and the Home Office were able to exercise their executive powers to deny citizenship to such individuals even without having a ‘good character’ policy in place as it does now. Even in cases where there was no evidence of criminality or bad character by individuals such as Mohammed Al-Fayed, the former owner of Harrods, the Home Office retained a discretion to deny them citizenship and the Judiciary were minded towards affording them some space in that regard.
So, are the Home Office’s attempts to extend its powers with regard to denying British citizenship to applicants such as refugees, who had entered the UK illegally, or those who have been resident in the UK lawfully, but have at some point unwittingly become overstayers, lawful?
Lawfulness of the ‘good character’ requirement
As such, to date, there hasn’t been a direct legal challenge to the lawfulness of the “good character” requirement in the Courts. Given that the “good character” requirement is contained within Schedule 1 of the British Nationality Act 1981, any challenge would likely be targeted at the departmental guidance (referred to earlier) as opposed to Schedule 1 itself. The most recent known Court challenges that targeted the application of the guidance by the Home Secretary (but not the guidance itself) have been those of R (Robinson) v Secretary of State for the Home Department  EWHC 683 (Admin), Al Enein, R (on the application of) v Secretary of State for the Home Department  EWHC 1615 (Admin) and even more recently the case of Hersi, R (on the application of) v Secretary of State for the Home Department  EWHC 3235 (Admin).
In Hersi, Michael Fordham QC (sitting as a Deputy High Court Judge) took particular issue with the way the Home Office departmental guidance contained in the Nationality Instructions approached some cases, noting that “Secretary of State is ruling out a favourable exercise of discretion unless she can find a precedent in other cases or justify making a precedent for other cases. That, together with the phrase “must fall for refusal” suggests that an individual case will not be considered by reference to the discretion if it is simply an exceptional case on its own merits which neither falls within nor justifies making a precedent… it is [therefore] properly arguable that in one or other or both of the respects … the Secretary of State has taken an unlawfully narrow approach”.
However, the full spectrum of jurisprudence concerning refusal of naturalisation over the course of the last 4.5 years – beginning in earnest with the case of Hiri v Secretary of State for the Home Department  EWHC 254 (Admin) in 2014 – appears to avoid a direct challenge to the guidance on the whole in all instances and therefore it remains an untested issue at the time of writing of this article in the final days of 2018. That is, of course, not to say that there may not be a challenge to the guidance on the whole at some future point, given that this subject area is still at its early stages with many frontiers remaining to be explored.
Can you successfully challenge the lawfulness of the Home Office’s ‘good character’ policy?
As noted above, with regards to direct challenges to the guidance on the whole, this remains an open topic and one to perhaps be explored in the future by an enthusiastic plaintiff. In broad terms, however, most Judicial Review claims in this subject field may not need to mount direct challenges to the guidance on the whole, but rather mount case-specific challenges, which is more likely to be successful. Of course, what is important to bear in mind is that there is no unitary formula and each situation is very much case-specific.
Equally, one has to bear in mind that even if a plaintiff succeeds in a Judicial Review claim against a decision to refuse the grant of naturalisation and the Home Secretary is required to make a new decision as a result of a quashing order. As any such decision is a discretionary decision of the Home Secretary, under Section 6 of the British Nationality Act 1981, the Court cannot compel the Home Secretary to naturalise an individual, but merely to issue a new and lawful decision – this was affirmed by the High Court in the case of Hacini, R (on the application of) v Secretary of State for the Home Department  EWHC 1648 (Admin).
With respect to cases involving serious criminality, terror-related concerns or matters of national security, given the current trends in jurisprudence it would not appear likely that direct challenges to the guidance on the whole in such a context would be destined to succeed – this is said with particular reference to the recent SIAC (Special Immigration Appeals Commission) judgment in the case of LA & Ors (Naturalisation: Substantive)  UKSIAC 1 SN/63/2015, which concerned the applications for naturalisation for the extended family of President Bashar Al-Assad of Syria.
In summary, direct challenges to the lawfulness of the guidance on the whole (as opposed to the case-specific application of individual limbs) are a phenomenon yet to be seen at this moment in time. They will – if such a challenge comes to the fore – undoubtedly present riveting intellectual parkour for the world of public and administrative law jurisprudence, which appears to be experiencing a renaissance of sorts in the recent few years.
By Jahed Morad and Hayk Sayadyan of Gulbekian Andonian Solicitors