3Good character and children
The application of the good character requirement to children
21.In Chapter 3 of our first Report, we highlighted that the approach taken in the proposed remedial Order to section 4F would mirror the approach taken in relation to the underlying requirements to which it cross-refers—i.e. it would remove the discrimination but would still require some children to prove good character where the underlying provisions required good character. The Committee could not understand (and had not received an adequate explanation from the Home Office) why children should need to show good character to access their nationality and status, for example so that a child (of say 10 or 11) can have the same nationality as her or his parent and siblings. We raised concerns that this seemed to conflict with the obligation to have regard to the best interests of the child and the rights of the child in general (see section 55 Borders, Citizenship and Immigration Act 200917 as well as the UN Convention on the Rights of the Child 1989). We also noted that this situation was exacerbated by an inflexible approach to applying the good character test.
22.In this context it is useful to consider the origin of these provisions. The BNA replaced the previous basis for acquiring British nationality (which had been based on birth in the UK) with broadly 3 types of basis for acquiring nationality:
a)Automatic entitlement to British nationality for those born in the UK to a British parent (or a settled parent). These people are automatically British.
b)Entitlement to British nationality on application for those with a specified very close connection to the UK (e.g. born in the UK and living in the UK for their childhood), who should therefore have an entitlement (i.e. a right) to nationality. These are people who most would assume to be British.
c)Application for British nationality on discretion (e.g. for those naturalising as British). These applications are based on the discretion of the Home Secretary, given that such individuals would normally have originally had a close connection with a country other than the UK.
23.When the BNA was introduced, the good character requirement only applied to the third category of people; in general, these were adults who had subsequently moved to the UK but had started out life with closer links to another country. It was felt inappropriate to apply extra tests to the first two categories of people as they had such close ties to the UK (e.g. having grown up and lived all of their lives in the UK).
24.However, some changes were introduced in 200618 and 200919 that applied the good character requirements to the second category of people, which included children20 who had been born in the UK and had lived their whole lives in the UK, knowing no other country or culture. As the Immigration Law Practitioner’s Association (ILPA) said in evidence to us:
“ILPA remains concerned about the requirement that children who are entitled to registration as British citizens are subject to the good character test. This was introduced with no real discussion about its effects and has resulted in children who would otherwise have been entitled to the citizenship of the country where they were born or have spent all their formative years being refused citizenship, or being deterred from applying at all for fear of being refused. We […] urge the government to change it in the near future.”21
25.At the time that these provisions were introduced Ministers referred to children with an entitlement to British nationality as “coming” to the UK (similar to adults seeking naturalisation), although that is not the case for these children who are born or have grown up in the UK. They face this additional good character hurdle, which was originally intended for individuals who moved to the UK, rather than those who grew up in the UK.22 This has led to many arguing that it is inappropriate to apply the good character requirements to children who were born in and/or have grown up in the UK, having the UK as the principal country with which they have a close connection.23 The House of Lords Select Committee on Citizenship and Civic Engagement has found it hard to accept that the good character test should be applied to young children. It recommended that “the Government should reconsider the age from which the “good character” requirement applied for the acquisition of British citizenship by registration”.24 The Committee shares these concerns.
26.It is inappropriate to apply the good character requirement to young children with a right to be British, where the United Kingdom is the only country they know and where they have grown up their whole lives here.
27.In the Parliamentary debates on extending the good character requirement to children who were entitled to be British, much was made by Government Ministers of “heinous crimes” of the most serious type—indeed the parliamentary debates focused only on those “heinous crimes”. This same narrative is contained in the Home Office’s response at paragraphs 14–15 which also refers to “heinous crimes”. However, the good character test applies also to cautions, minor offences and a whole host of activity (including non-criminal activity such as financial soundness, notoriety and immigration related issues)—it is not only focussed on the most serious crimes. Indeed, half25 of the children denied their “entitlement” (i.e. right) to British nationality on good character grounds have not even received a criminal conviction (having merely received a police caution)—let alone been prosecuted for “heinous crimes”.
28.We note that the Independent Chief Inspector of Borders and Immigration has also raised concerns that the way that the Home Office is applying the good character test to children risks being at odds with the Home Office’s statutory responsibilities in relation to “safeguarding and promoting the welfare of children or to making the ‘best interests’ of the child a primary consideration”.26 He has called for the guidance to be updated to reflect these responsibilities. His concerns were that the approach was inflexible, rigid and did not reflect an individualised assessment looking at the whole character of a child (as is required by the caselaw relating to good character). The Home Office has attempted to rectify this by including more references to the best interests of the child (in line with its domestic and international law obligations). However, the updated guidance still applies the same test to children born in the UK and who have grown up in the UK, as it does to adults who moved to the UK later in life. It still applies a threshold test for criminality for children which includes cautions. It also seems that, to date, the best interests of the child and child safeguarding obligations are not being adequately taken into consideration in Home Office decision-making.27
29.We note in its response to the Committee that the Home Office has again been unable to explain or justify why the good character test is applied to children who have grown up all their lives in the UK and know no other country. We are concerned that this policy is preventing children whose only real connection is with the UK from becoming British—contrary to the intention behind the “entitlement” route to British citizenship for children who have grown up in the UK. In particular, we are most concerned that this is affecting children as young as ten years old who have lived all of their lives in the UK. The Government should review the application of the good character test to children with a right to British citizenship who have grown up in the UK, in particular, carefully reflecting its obligation to consider the best interests of the child when considering the impact on children with such a close connection to the UK.
30.The Home Office has also failed to explain why a child should be deprived of their right (entitlement) to British nationality due to a mere police caution. Given the Home Office’s claim that its policy is focused on “heinous crimes” such as murder and rape, it is inappropriate for children born and/or brought up in the UK to be denied nationality for minor offences. In particular, children should not be deprived of their entitlement (right) to British nationality because of a mere caution.
17 Borders, Citizenship and Immigration Act 2009, chapter 11
18 Immigration, Asylum and Nationality Act 2006, chapter 13
19 Borders, Citizenship and Immigration Act 2009, chapter 11
20 The Good Character test is applied to children as young as ten years old. The Home Office argues that this is so that it is in line with the age of criminal responsibility in England, Wales and Northern Ireland, which is the lowest age of criminal responsibility in Europe and one of the lowest worldwide. It is well below international standards where the minimum age is considered to be twelve (see for example, the UN Committee on the Rights of the Child, Concluding Observations on the United Kingdom, 2007, 2008, 2016). Very young children are therefore being affected by these rules.
22 See the details on this set out in the joint evidence from Amnesty International UK and the Project for the Registration of Children as British Citizens - DBA0007
23 See DBA0006 [Immigration Law Practitioners’ Association] and DBA0007 [Amnesty International UK and the Project for the Registration of Children as British Citizens]
24 See Chapter 9, paragraph 460 of the House of Lords, Select Committee on Citizenship and Civil Engagement, The Ties that Bind: Citizenship and Civic Engagement in the 21st Century Contents, Session 2017–19, HL Paper 118
25 See Independent Chief Inspector of Borders and Immigration, A re-inspection of the Home Office’s application of the good character requirement in the case of young persons who apply for registration as British citizens, August 2018 – January 2019, April 2019, at paras 3.6 and 8.13; that of the 28 children refused on good character grounds, 16 had only a caution and did not have a criminal conviction. Therefore well over half of children with a right to British nationality (who had grown up in the UK) who were refused British nationality on good character grounds did not even have a criminal conviction.
26 See Independent Chief Inspector of Borders and Immigration, A short inspection of the Home Office’s application of the good character requirement in the case of young persons who apply for registration as British citizens, February – April 2017, July 2017
27 See Independent Chief Inspector of Borders and Immigration, A re-inspection of the Home Office’s application of the good character requirement in the case of young persons who apply for registration as British citizens, August 2018 – January 2019, April 2019, at paras 8.22–8.30
Published: 9 July 2019