Surely, it’s straightforward to successfully apply for British Citizenship and naturalise in the UK if you already have indefinite leave to remain?
Many people are of the opinion that once they have indefinite leave to remain and become eligible for citizenship they can simply apply without facing any problems. The general requirements for British citizenship are :-
- you need to be over 18.
- to intend to live in the UK
- be of sound mind
- meet the knowledge of English and life in the UK
- to be a person of good character.
It is the last of these that can be problematic, for the reasons described below.
The good character test
There is no definition of “good character” in the British Nationality Act 1981. However, there is Home Office published guidance on what grounds will justify refusal. These include having being convicted of an unspent crime, association with war crimes, terrorism, fraud, notoriety, dishonest and deceptive behaviour, and evasion of immigration control.
The list is non-exhaustive and thus if a person does not fall into one of these categories but the Secretary of state has concerns or doubts about a person’s good character their application can be refused and perhaps without specifying a reason.
The above is illustrated by the recent Immigration appeal case of AM (Naturalisation: Substantive)  UKSIAC SN_1_2014 (13 April 2016)
The appeal (which also included a claim for damages under Human Rights grounds, effectively for personal injury) was on the basis that the decision to refuse to grant the Appellant Naturalisation did not give any reasons.
The reason for refusal was never disclosed to the public as it was determined that it involved public policy/security issues and was not deemed to be in the public interest. So, the actual reason for the refusal was heard in closed proceedings.
Immigration naturalisation and Human rights arguments in the appeal
The applicant, originally from Pakistan, already had indefinite leave to remain status and has 3 children and a wife, all of whom are British citizens.
The Appellant argued that the decision to refuse his application was in breach of his rights under Article 8 of the Human Rights Act. He claimed to have suffered from Mental health/depression as a result of the decision to refuse him naturalisation preventing him from leaving his house and affecting his relationship with his family by forcing him to move out from the family home. He also felt that he was under surveillance by the UK authorities.
There have been many appeals brought on the basis that refusing British Citizenship breaches human rights under Article 8. Under current EU law, the refusal of a person’s application for naturalisation does not automatically mean that Article 8 is engaged.
So what else has to be proved?
In order to succeed in showing that Article 8(1) was engaged and infringed, it is necessary to prove that a person’s Article 8 rights have been directly and substantially affected by the refusal decision and/or that refusal was arbitrary.
In this case :-
- the applicant had a pre-existing history of mental health issues.
- there were inconsistencies in his evidence.
- his right to family life Human Rights were not sufficiently breached as he voluntarily left his family and went back to Pakistan.
The court also determined that even if they had found otherwise on the above, he also failed on the arbitrary claim, because, in effect, human rights can be trumped by “the interests of national security, public safety… for the prevention of disorder or crime,. …or for the protection of the rights and freedoms of others.”
The above case is worth reading as it raises issues which many clients seek to rely on. There can be a tendency to think that human rights law now overrides all other law and that it is easy to succeed with Human Rights arguments. Clearly it isn’t and readers may also be surprised to learn that reasons for refusing a naturalisation application can be vague or even, on occasion, legitimately withheld.
It is also clear that the “good character” requirement has been set at a very high standard.
A recent case example I dealt with
I recently had a situation whereby the Secretary of State had refused an application for citizenship because she believed my client had been illegally working during the previous 10 years to him being granted indefinite leave to remain.
The Secretary of State had requested further information asking how he was able to sustain himself from 2002 – 2009 which he supplied through the help of friends. Written submissions, supporting letters from friends and charities were submitted but yet it was determined that he did not show how they were able to support him thus refusing him on breaching the Immigration Act.
Is it reasonable for the secretary of State not to be satisfied that the person was of good character because he was able to survive unlawfully without working for seven years? Was she bound to refuse because she didn’t believe he was supported by friends and family even with substantial evidence of having been supported by friends and family?
Is it worth becoming a British Citizen?
In the above case the applicant felt that as a result of the refusal he suffered from Mental Health and developed depression. Therefore many people place a lot of weight on becoming a British national. But why bother go through all the hassle.
Whilst having indefinite leave to remains allows you to live and work in the UK without limit and allows you to access the same benefits as British nationals it can be taken away from you.
For example, if you were to leave the UK for more than 2 years the presumption is you have lost your right to indefinite leave and have to apply to return as a returning resident. You will have to prove you have ties and connections to the UK which would make refusing you re-entry disproportionate. With British citizenship you would not have to face this problem.
Therefore the first most important aspect of holding British citizenship is that it gives you the right of entry and the right of abode. This means that they do not need to obtain the permission of an immigration officer to enter the UK, and may live and work without restriction. You are protected by the Crown and cannot be (in most instances) deported or required to leave the UK.
Also as the UK is a member of the EU, British citizens are citizens of the European Union and thus enjoys free movement within Europe (with some exceptions). So there are definite benefits in becoming British and it eliminates uncertainties of not having citizenship, it permits you to travel visa free to so many different countries and makes the whole process of travel a lot easier.
The Secretary of State makes it clear that becoming British is a privilege and not a right, therefore the Secretary of State has the discretion and she can apply it as she sees fit. Daunting as that sounds she still has to weigh in the balance of strong countervailing evidence of a person’s good character against any reason to refuse. If you have had an application refused and you feel she has made an unlawful decision you do have the right to request a review of that decision.
If you think there is any reason, even remote, where simply by association you think you may be found not to be of good character or you are applying for naturalisation and you wish to know more about this requirement give us a call and we would be happy to discuss any concerns with you and ensure your good character arguments are conveyed in the best possible way.
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