The British Nationality Act 1981 ( Section 41A(1)mandates that all applicants for naturalisation as British citizens must be of Good Character. This requirement also applies to individuals aged ten or over who apply for registration as British citizens. The good character requirement for British citizenship includes a long list of factors that could prevent or delay the process. These range from serious criminal offences to non-criminal attributes, such as being bankrupt or having previously violated immigration rules.
British Good Character Requirement – Breaching Immigration Rules (e.g. Previous Overstaying a Visa)
The good character requirement for British nationality is a potential stumbling block in the naturalisation process, particularly for individuals who have previously overstayed their visas but were later granted leave.
Example: Babatunde, is an Nigerian national who came to the UK in 2016 on UK Visitor Visa but then overstayed after six months. In 2018, he met the love on his life, a Polish lady, Olga, they got married and he regularized his stay and was given Pre-Settled Status (Leave to Remain) in Dec 2018 and ( Settled Status) Indefinite Leave to Remain in 2023.He now want to become a British National as him and his family are fully settled in UK.
Basis Good Character Rule for British Nationality for Breach of Immigration Rules – Pre-June 2022
Home Office guidance provides that an application, such as the example above, would normally be refused if the applicant has not complied with immigration requirements in the ten years preceding the application. This includes overstaying, working without permission, or failing to comply with conditions imposed under the Immigration Acts.
A limited discretion could only be exercised to overlook a period of overstaying if it is the sole adverse factor and either the application for leave to remain was made within 28 days of the expiry of the previous leave (for applications before 24 November 2016) or the period without leave was not the fault of the applicant.
More Flexibility Rules on Breach of Immigration Rules for British Good Character After June 2022
Assessing the character of individuals who have overstayed their visas can be complicated. In the past, not following immigration laws, such as overstaying, has often led to citizenship applications being rejected. However, recent policy changes have introduced some more flexibility.
As of June 28, 2022, Schedule 1 of the Nationality and Borders Act 2022 (NABA 2022) has amended the requirements for naturalization and registration for British citizenship under sections 4(2) 6(1) and 6(2) of the BNA 1981. This means that a person can be considered as meeting the lawful residence requirement during the qualifying period without further inquiry if they hold indefinite leave to enter or remain in the UK.
This change commenced on 28 June 2022, meaning breaches related to overstaying, illegal entry, or absconding will be disregarded during the ten-year period prior to the application if:
- The applicant holds indefinite leave to enter or remain in the UK, and
- No other character concerns have arisen since the settlement/Indefinite Leave to Remain ( ILR) was granted.
Returning to our previous example, Babatunde would not have qualified for British nationality until May 2028, which is ten years after he became a lawful resident. However, he would, after June 2022, qualify under this law if he has Indefinite Leave to Remain and has not committed any further offences, such as driving violations or bankruptcy.
Caselaw Behind this Amendments
Good character requirement has been an area that has long attracted litigation against the government, especially as the list of what fell within its definition expanded over the years.
The court seems to have generally agreed with the Home Office that nationalisation should attract the highest standard of scrutiny for the applicant’s character; for instance, In the case of R (on the application of Abbas) v Secretary of State for the Home Department [2017] EWHC 78 (Admin), it was established that using deception in immigration applications, such as providing false information, could negatively impact the assessment of good character. Similarly, in R (on the application of Robinson) v Secretary Of State For The Home Department (2017), illegal working was deemed sufficient to justify the refusal of a naturalisation application on character grounds.
However, there were cases which also advocated for a more “common sense” approach, like in the case of R (on the application of Hiri) v Secretary of State for the Home Department – [2014] All ER (D) 165 (Feb) highlighted that the Secretary of State must weigh all aspects of an applicant’s character as a whole and not apply the policy mechanistically. This means that while previous overstaying is a significant factor, it is not the sole determinant. Other positive aspects of the applicant’s character may be considered.
In this case, the court found that the Home Office’s decision refusal of a British appplicaiton based on good character of the applicant, a Rwandan national, who was a British Army veteran, due to minor speeding offences, was “irrational” and “legally flawed“.
More Flexible Approach – It is up to you to make a persuasive case
In conclusion, while previous overstaying can still impact the good character assessment for British nationality, recent policy changes and the expansion of the scope of discretion exercised by the Home Office provide some leeway for applicants who have since complied with immigration laws and hold indefinite leave to remain.
Note it is essential for applicants to provide comprehensive evidence of their character and any mitigating circumstances surrounding their previous overstaying to support their application to persuade the UK Visa and Immigration to actually exercise this in your favour.
As this is a potential complication, we would recommend seeking legal advice from a qualified UK Immigration Solicitor if you have any questions or are unsure about the chances of an application succeeding.
We have helped many migrants apply for British Citizenship and would be happy to have a short conversation about your options. The initial conversation is free of charge, and we will be able to inform you of the general chances of an application succeeding and our fees if you would like us to assist you with making it.
You may contact us by filling out our Quick Enquiry form whenever you need professional support or have questions about your UK Immigration. Alternatively, you can call us during office hours on 07544669131 / 0116 3800 744
Cross Border Legal Solicitors Ltd is a UK Solicitor law firm regulated by under the Solicitor Regulations Authority. It is Headed by Mr Tito Mbariti, a UK Immigration and Human Rights Solicitor practising lawyer and member of the Law Society of England and Wales.