29.Good character is not defined in the BNA, but rather in a Home Office policy document, “Nationality: Good Character Requirement”, which explains that:
“The BNA 1981 does not define good character. However, this guidance sets out the types of conduct which must be taken into account when assessing whether a person has satisfied the requirement to be of good character. Consideration must be given to all aspects of a person’s character, including both negative factors, for example criminality, immigration law breaches and deception, and positive factors, for example contributions a person has made to society. The list of factors is not exhaustive. Each application must be carefully considered on an individual basis on its own merits. You must be satisfied that an applicant is of good character on the balance of probabilities.”
30.The Courts have ruled that Home Office decision-makers, when undertaking a good character assessment, should make an overall assessment as to the character of the applicant, including taking into account evidence of positive good character. However, despite the introductory part of the guidance, the thrust of the guidance principally focuses the minds of Home Office decision-makers on when to refuse on grounds of bad character. Therefore, whilst good character should not necessarily be the same as not of bad character, it can be inflexible in practice. It can be difficult to get a proper individualised assessment and there can be little flexibility in the way this is applied.
31.The application of the good character requirement to those with a right to British nationality is a comparatively recent development (introduced in 2006 and 2010). It poses obvious potential difficulties and unfairness when applied to those who have suffered previous discrimination and to children whose main, or only real, connection may be with the UK.
32.In previous Parliaments, the Joint Committee on Human Rights has raised concerns about the good character requirement being applied to applicants who have suffered historical discrimination, as it can lead to additional discrimination as compared with those who were not discriminated against, as well as more general concerns at the inappropriateness of requiring children who have grown up in the UK to prove good character. Similar concerns have been raised in written evidence.
33.Clause 2 addresses pre-existing discrimination in British nationality law preventing unmarried fathers from transmitting British overseas territories citizenship to their children. Clause 2(4) (inserting a new (2A) into section 41A BNA) does require good character in respect of applications under the new section 17C BNA (but not the other new sections being inserted into the BNA by clause 2). This approach follows the approach taken previously in rectifying similar discrimination in relation to British citizenship.
34.Clause 3 (inserting new section 4K into the BNA) introduces changes to allow those now able to obtain British overseas territories citizenship under the changes being introduced by clauses 1 and 2 to obtain related British citizenship. Clause 3(4) (inserting into section 41A BNA a new (2B) and (2C)) requires good character in respect of applications under the new section 4K BNA, following the approach taken when originally allowing British overseas territories citizens to obtain British citizenship in 2002. At first glance, it might therefore seem unlikely that the good character requirement here would lead to discrimination as compared to British overseas territories citizens who could obtain British citizenship since 2002 under the equivalent provision. However, if those individuals had not been discriminated against in obtaining British overseas territories citizenship and therefore had become British citizens in 2002, any subsequent conduct would not have affected their British nationality. However, due to the discrimination, any conduct subsequent to 2002 would now risk being a bar to obtaining British citizenship. At this point, the effect of the good character requirement combined with previous discrimination becomes clear and results in further discrimination, contrary to Article 14 as read with Article 8 ECHR.
35.We consider that it is unlawful discrimination, contrary to Article 14 as read with Article 8 ECHR, to require a person to prove good character when remedying previous unlawful discrimination against that person. We therefore recommend that the clause 3(4) of the Bill be deleted.
36.It is unclear how requiring good character in respect of a child can be in the “best interests of the child” (Article 3 UN Convention on the Rights of the Child).
37.Clause 4 introduces changes to allow for a child to be registered as a British overseas territories citizen (by descent) whilst that child is a minor (rather than solely within 12 months of birth). Clause 4(2) requires children to be of good character, and seems to follow the approach taken in relation to the equivalent provisions relating to British citizenship. This nonetheless raises questions of the appropriateness of applying a good character requirement to children.
38.Clause 6 introduces changes to allow a natural father to pass on British citizenship to his child where the mother was married to someone else. Clause 6(4) requires good character for some applications within clause 6 which could have the effect of unfairly requiring good character from those who had faced prior discrimination. It also raises concerns about applying good character requirements to children. However we note that where the amendments require good character, this seems to be in line with the existing requirement under section 41A(1) BNA for children born overseas to a member of the Armed Forces to prove good character.
39.Clause 7 (introducing a new sections 17H and 17L into the BNA) allows the Secretary of State the discretion to grant British citizenship/British overseas territories citizenship to adults where they would have had that citizenship but for historical legislative unfairness (which is defined non-exhaustively), an act or omission of a public authority, or other exceptional circumstances. Clause 7 allows the Home Secretary to take into account whether an applicant is of good character, but makes this discretionary rather than mandatory (see new section 4L(4) and section 17H(4) BNA).
41.We reiterate concerns made by this Committee in previous Parliaments that requiring good character when considering applications resolving prior discrimination risks perpetuating the effects of discrimination for those previously discriminated against. Moreover, we also share the concerns raised by the JCHR in 2019 about the appropriateness of the good character requirements being applied to children, particularly children whose main or only real connection may be with the UK. It is difficult to align this requirement with the obligation to have the best interests of the child as a primary consideration. The Home Secretary should review the application of the good character requirement in Part 1 of the Bill and the BNA to ensure that it does not risk being applied in a way that risks perpetuating discrimination or in a way that would be contrary to the best interests of a child in an individual case.
39 Home Office, , 30 September 2020
40 Home Office, , 30 September 2020: “The good character requirement previously only existed for naturalisation as a British citizen. It was subsequently introduced by section 58 of the Immigration, Asylum and Nationality Act 2006 as a requirement for specific routes to registration as a British citizen. Section 47 of the Borders, Citizenship and Immigration Act 2009 inserted section 41A into the British Nationality Act 1981 (‘the BNA 1981’) on 13 January 2010, extending the good character requirement to other registration routes including to a person registering as a British Overseas Territories Citizen, British Overseas Citizen or British Subject.”
41 See Joint Committee on Human Rights, Fifth Report of Session 2017–19, , HC 926 / HL Paper 146, para 41–60, and in particular the recommendation at para 53: “Had children been allowed to apply for citizenship when they were under the age of 10, they would not have needed to prove good character. We do not consider it justified or proportionate to require children who have been discriminated against, additionally to have to prove good character when they are now finally entitled to apply following the removal of that discrimination. In our view, there is a risk that this constitutes unjustified discrimination contrary to Article 14 of the ECHR, as read with Article 8 of the ECHR. We would therefore recommend that the Home Secretary consider taking the necessary steps to eliminate such discrimination.”
See also Joint Committee on Human Rights, Twentieth Report of Session 2017–19, , HC 1943 / HL Paper 397, para 31–34, and in particular the recommendation at para 34: “We consider that the Home Office is leaving itself open to successful legal challenge by requiring from children against whom it has previously discriminated additional requirements (good character) that would not have applied had they been able to apply as young children. We recommend that the Home Office reconsider its position in respect of children which it has previously discriminated against so that they can obtain British nationality without discrimination or superfluous requirements.”
42 See, for example, British Overseas Territories Citizenship Campaign () which calls for the good character requirement to be “done away with” and Project for the Registration of Children as British Citizens and Amnesty International () which raises concerns at the application of good character requirement to children.
43 See, for example, Joint Committee on Human Rights, Twentieth Report of Session 2017–19, , HC 1943 / HL Paper 397, para 21–30, where the Committee expressed concerns at the application of the good character requirement to children born in the UK and who had lived their whole lives in the UK