British citizenship for young migrants – and ‘bad character’ provisions

How a fight at school led to a 13 year old being denied British Citizenship. Solange Valdez and Steve Symonds explain why they are seeking to challenge the way ‘bad character’ provisons are being applied to migrant children as young as 10. 

In 1981, parliament passed the British Nationality Act. Previously, anyone born in the UK was a British citizen by birth. The Act changed this. As was made clear in the parliamentary debates, the aim in making this change was to better provide that British citizenship be determined by a person’s connection to the UK.

In recent years, the act has been amended – particularly to address discrimination relating to illegitimate children and to a mother’s ability to pass on their citizenship; also as regards when the good character test applies in registration applications. However, the basic foundations for British citizenship remain as they were in 1983 when the Act was commenced.

Anyone born in the UK to a British citizen or settled parent is a British citizen. The act provides for circumstances in which British citizens overseas can pass on their nationality to their children.

In keeping with its original aim, the act also provides for various other circumstances in which children are entitled to British citizenship; and gives discretion to the Home Secretary to ensure that other children whose future clearly lies in this country may be registered as British citizens.

But many children in the UK are not receiving the citizenship this statutory scheme was intended to secure for them. There are various reasons for this. Many children are unaware they are not already British. Many parents, lawyers and others remain unaware of children’s entitlement to register. Home Office fees for children to register are extortionate and increasing. Many local authorities have failed to act in a timely fashion or act at all to protect the rights of children in their care.

The Project for the Registration of Children as British Citizens (PRCBC) has encountered many such children.

One factor that has become increasingly significant is the application of the good character test. This applies to all registration applications made by someone aged 10 years or over by virtue of section 41(A) of the act, except for some cases where the applicant is stateless. The Home Secretary must be satisfied the applicant is of good character if citizenship is to be granted.

The fact of this requirement ought to emphasise the importance to lawyers, social workers and others of registering children’s entitlement to citizenship at the earliest opportunity. If children go on to become involved in the criminal justice system when they are older, registration at a young age can be an important protection for them enabling future rehabilitation and development. As the recent review chaired by Lord Laming has found, those subjected to poor parenting or without parents and in care are disproportionately affected.

David is one of those children affected. He was born in the UK and is in care. Now 15 years old, he could and should have been registered as British by entitlement when aged 10, but now with a criminal conviction his opportunity to realise that entitlement is at risk.

A criminal record is not the end of the road for a child seeking to register as a British citizen – whether by entitlement or discretion. The act does not define good character, but neither does it leave the meaning of good character to the Home Secretary’s general discretion.

The High Court has made clear in R (Hiri) v SSHD [2014] EWHC 254 (Admin) that in applying the good character test, the Home Secretary must consider all aspects of the applicant’s character. It is not enough for her to focus on one aspect of the person’s character, and the presence or absence of a criminal conviction is not in itself determinative of character. As the court held:

There has to be a comprehensive assessment of each applicant’s character, as an individual, which involves an exercise of judgment, not just ticking boxes on a form.’

This case concerned an adult seeking to naturalise, but the approach was followed by the High Court in R (SA) v SSHD [2015] EWHC 1611 (Admin) in the case of a child’s registration by discretion under section 3(1) of the Act.

Both judgments demonstrate a profound inadequacy in the way the Home Secretary approaches good character on citizenship applications. Yet her decisions continue to be driven by a mechanistic approach, applying the various thresholds discussed in the Nationality Instructions, Chapter 18, Annex D in tick box-style. This has been made much worse since the introduction in December 2012 of section 56A of the Borders Act 2007. From that time, convictions which for other purposes would be treated as spent under the Rehabilitation of Offenders Act 1974 remain to be considered by the Home Secretary when making certain immigration and nationality decisions.

Annex D is expressly intended for naturalisation applications – applications which only an adult can make. However, the Home Secretary has instructed her decision-makers to apply it on registration applications by both children and adults.

Applying good character guidance with no distinction between adults and children constitutes a serious failure to recognise, still less give effect to, what it means to fully and individually consider the applicant’s character.

Both High Court judgments emphasise the need when deciding an application made by someone with a criminal record to consider mitigating factors. In SA the court also drew attention to the obligation under Article 40 of the 1989 UN Convention on the Rights of the Child to take steps to facilitate a child offender’s rehabilitation and reintegration.

Given the developing nature of childhood, as recognised in the UK and other legal systems, it ought to be clear that making an assessment of whether someone is of good character will require a particular approach when that person is a child. That this is so should be all the clearer to the Home Secretary after the UK’s reservation to the UN Convention in 2008, and her adoption by section 55 of the British Citizenship and Immigration Act 2009 of an express duty to promote the welfare of children.

Nonetheless, decision-making in children’s cases demonstrates these considerations are systemically ignored. Hundreds of children have been refused citizenship on grounds of good character – including children like Olly and Mahmood. Olly was born in the UK and is now 13 years old, but his registration has been refused on the basis of a conviction for assault following a fight at school. Mahmood came to the UK as a refugee when aged 10. He is now 17 years old, but a police caution has led to his application being refused.

The Project for the Registration of Children as British Citizens (PRCBC) has, therefore, commenced research funded by the Strategic Legal Fund (SLF) with the aim of exploring how this may be best challenged. PRBC is hosted by Asylum Aid. PRCBC is interested in hearing from lawyers about any young person affected by the good character requirement.  To get in touch, or for more information, please contact Solange Valdez (e-mail: solange.valdez@asylumaid.org.uk) or complete the PRCBC questionnaire.

About Solange Valdez and Steve Symonds

Solange is solicitor and director of the Project for the Registration of Children as British Citizens and Steve is refugee and migrants rights programme director at Amnesty International UK

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