UK immigration and nationality law is forever evolving and changing. Policies, guidance and law are regularly revised, with varying degrees of advance warning. Businesses, individuals and their advisers find they must adapt quickly.
The current direction of travel is clear. Most recent changes have been designed to make it more difficult for applicants to regularise their stay in the United Kingdom, settle and eventually become British. We may not like it, but it is the new reality we have to work with.
Some policy shifts have drawn conspicuous criticism from practitioners, whether they focus on private or business immigration. The new “clarifications” to caseworking officials on how to assess the Good Character requirement in nationality applications is a case in point.
What is the Good Character requirement?
The requirement for a person to be of good character in order to naturalise as a British citizen is statutory and unwaivable and has always been a central requirement of the British Nationality Act (BNA) 1981. The Immigration, Asylum and Nationality Act 2006 first extended the Good Character requirement to some routes to registration as a British citizen, and that has since been further extended. Set out in Schedule 1 of the BNA, the meaning of “Good Character” has never been completely defined, but successive changes have added layers of requirement and exclusion.
The most recent Good Character guidance, published to take effect for applications made from 10 February 2025, has some important additions.
This has been added to page 50:
Any person applying for citizenship from 10 February 2025, who previously entered the UK illegally will normally be refused, regardless of the time that has passed since the illegal entry took place.
Any person applying for citizenship before 10 February 2025 where illegal entry is a factor, will continue to have their application reviewed to determine whether that immigration breach should be disregarded for the purpose of the character assessment.
If applicants applied before 10 February 2025 the position is as it was in the previous guidance which states that it will “normally” be appropriate to refuse naturalisation where illegal entry took place in the past ten years.
The following section has been added to page 51:
Arriving without a required valid entry clearance or electronic travel authorisation, having made a dangerous journey.
A person who applies for citizenship from 10 February 2025 who has previously arrived without a required valid entry clearance or electronic travel authorisation, having made a dangerous journey will normally be refused citizenship.
A dangerous journey includes, but is not limited to, travelling by small boat or concealed in a vehicle or other conveyance. It does not include, for example, arrival as a passenger with a commercial airline.
It is noted the guidance states that applications will “normally” be refused. This means there is a possibility of discretion that can be exercised by the Home Office.
However, it seems the actual reality may be more difficult. Lord Hanson of Flint recently told the House of Lords:
“The Government are not going to withdraw from the convention. The Government support the convention and believe that the proposals referred to in this Private Notice Question are compliant with it. Nothing in the proposals today stops any individual applying for British citizenship, however they have arrived in the United Kingdom. But the presumption is that those who have arrived illegally will find their application turned down, unless they can provide a range of circumstances which are exceptional, compelling and mitigating, and where the Secretary of State may therefore choose to apply discretion to grant citizenship on an exceptional basis. I believe, as does my right honourable friend the Home Secretary, that that is compliant with our international obligations and, at the same time, examines what is an illegal route to the United Kingdom.”
Therefore, it seems that those who have come to the United Kingdom and illegally entered will face a huge challenge obtaining citizenship.
The majority of those who have entered the United Kingdom illegally do so to claim asylum. They will argue they have come to the United Kingdom due to persecution in their country of origin and may be fleeing for their lives. If they are successful in proving this to the Home Office/ Court, most will be recognised as refugees under the 1951 Geneva Convention. The alarming point is that this change will, on the face of it, stop a large number of refugees from naturalising as British citizens - effective immediately.
The change, in particular for refugees, appears to not give due consideration to Article 31 of the 1951 Convention relating to the Status of Refugees, which states the following:
“1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”
However, there are other applicants who may be affected, if an applicant has entered the United Kingdom illegally and obtained leave to remain following a successful partner application, which is within the rules, they would be barred from naturalising.
It may be the case the applicant in the above scenario has a breakdown of their relationship and switches to a Skilled Worker route. This in its own right would be difficult, as the Home Office would need to refer to Part 9: Grounds for Refusal of the Immigration Rules. The applicant may be working for a highly thought about organisation and apply for settlement after five years. However, they too would not be able to naturalise.
The ramifications for such a change are very significant. The effects will not be known until further down the line when more applicants would reach the stage to naturalise e.g. a successful asylum applicant in January 2020 having obtained settlement in January 2025 would not be able to naturalise given the need to wait one year to apply.
Discretion relating to children
With regards to minors who may have been entered illegally the guidance at page 49 states the following:
When assessing a child’s Good Character, it will normally be appropriate to disregard immigration breaches if it is accepted this was outside of their control. For example, where a parent applied for the child to come to the UK as their dependant but failed to apply for an extension of leave when the child’s temporary leave expired, the child should not be penalised.
There is a little more leeway with regards to discretion as children should normally not be penalised. However, it does still mean that they can be refused so should not be taken lightly.
There has been a challenge made to this amendment in the Good Character requirement. The challenge is still at a very early stage. However, the outcome of that challenge could determine and shape, for many years to come, how naturalisation applications made by applicants who have entered illegally are processed and dealt with.
Please contact our Business Immigration team if you require further guidance or assistance.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
