We regularly receive queries concerning applications for naturalisation which have either been refused because of a person’s failure to disclose a criminal conviction, or where the applicant is unsure as to what to declare on their British citizenship application.
The guidance issued by the Home Office on criminality is far from straight forward for applicants concerned about the impact of criminal convictions on their citizenship application.
What is clear is that the “good character” requirement is mandatory on all UK naturalisation applicants over the age of ten, as set out in the British Nationality Act 1981. Failure to meet the good character test will see the naturalisation application refused.
What is the good character requirement for naturalisation?
The Home Office’s Good Character nationality policy guidance document provides an extensive and non-exhaustive list of circumstances which would be considered grounds to fail the good character test. Among the list, those in relation to criminal convictions can become problematic if an applicant fails to disclose all relevant information.
Criminal convictions & naturalisation applications
Caseworkers consider a range of factors when assessing criminal convictions and determining if an applicant passes the good character test.
One of the considerations is the level of conviction and sentence passed. The guidelines provide the following thresholds, which are based on the entirety of the sentence handed down rather than time actually served.
|Criminal conviction: sentence||Effect on naturalisation application|
|A non-custodial sentence or other out of court disposal recorded on a person’s criminal record, including suspended sentences, cautions, warnings, community sentences, hospital orders and fines||Normally refused if the conviction occurred in the last three years|
|Up to 12 months’ imprisonment||Normally refused unless ten years have passed since the end of the sentence|
|Between 12 months’ and four years’ imprisonment||Normally be refused unless 15 years have passed since the end of the sentence|
|Four years’ or more imprisonment||Normally refused regardless of date of conviction|
Naturalisation applicants should also note that the rules apply equally regardless of where the crime was committed or the sentence passed, unless the behaviour would be considered legitimate in the UK.
The guidance states that the Home Office will normally disregard a single conviction for a minor offence resulting in a ‘bind over’, conditional discharge or relatively small fine or compensation order, if a person is suitable for citizenship in all other respects. A ‘minor offence’ would include a minor speeding offence or other ‘regulatory’ offences.
While not all Fixed Penalty Notices are criminal convictions, it is generally advisable to disclose these to allow the Home Office to have full oversight of all relevant information to make a determination of character.
Offences involving dishonesty (e.g. theft), violence or sexual offences or drugs are not classed as minor offences. Drink-driving offences, driving while uninsured or disqualified or driving whilst using a mobile phone are not minor offences.
Where there are multiple minor offences, the caseworker may make an assessment as to whether there is a pattern of behaviour inconsistent with the good character requirement. The decision will turn on the specific facts and circumstances of each application.
The critical point is that all offences should be disclosed within the application. While a minor conviction may be overlooked as a ‘blip’, deliberate deception and failure to disclose would be considered indicative of poor character.
Under section 140 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, even ‘spent’ convictions must be declared within immigration applications, including naturalisation applications, with effect from 1 October 2012.
Although the Rehabilitation of Offenders Act 1974 allows for spent convictions to be ignored after a certain period of time from the date of conviction, provided the individual has not been convicted of other offences during that time, within certain contexts (such as employment), the provisions do not extend to immigration matters.
Failure to disclose
If in doubt about a criminal conviction and your naturalisation application, the general position is to make a full disclosure. This includes pending convictions.
Failure to disclose can cause multiple issues. It can give rise to grounds to refuse the application. The application fee will be lost. It may also cause issues for future immigration applications if there is an allegation of deception. This could relate to the current naturalisation application, or any past immigration or UK government application, such as for housing support.
Any deception relating to a previous immigration application will mean an application for British citizenship will be refused for ten years starting with the date on which that deception was discovered or admitted.
Applicants should also note that the Home Office has powers to deprive an individual of British citizenship if deception is later discovered after the naturalisation process has concluded.
Caseworkers are generally expected to consider applicants in the whole, looking at patterns in behaviour to make an overall determination of whether they meet the good character requirement.
The good character requirement is a complex and evolving area. Our UK immigration specialists are on hand to advise on your circumstances. If you are concerned about the impact of a criminal conviction on your naturalisation application, contact us for advice.
Last updated: 30 October 2020