Published on January 23, 2013
On 13 December 2012, the UK Border Agency (UKBA) as part of the wider immigration changes announced the way it will assess the ‘good character’ requirement for naturalisation applications. It is pertinent to note that criminal convictions will no longer be considered ‘spent’ but will be evaluated according to a ‘sentence based threshold’.
These changes now make it mandatory for individuals to declare any offences or convictions ever received either in the UK or abroad. Where an offence occurred abroad, it will be considered in line with the equivalent UK offence and the relevant sentencing threshold applied.
From the 1 October 2012, certain immigration and nationality decisions were exempt from s4 of the Rehabilitation of Offenders Act (ROA) 1974. As a result, the concept of a conviction becoming “spent” no longer applies when making an assessment of good character. Therefore, when dealing with nationality applications made on or after 13 December 2012, the UKBA will normally refuse an individual who has a conviction within the relevant sentence based threshold as detailed below.
If an individual has been convicted of an offence in the UK, the length of time they must wait before making a naturalisation application is:
• Sentence of 4 years or more imprisonment – the application will be refused, regardless of when the conviction occurred.
• Between 12 months and 4 years imprisonment – the application will be refused unless 15 years have passed since the end of the sentence.
• Up to 12 months imprisonment in the last 7 years – the application will be refused unless 7 years have passed since the end of the sentence.
• A non-custodial offence – the applications will be refused if the conviction occurred in the last 3 years.
Any unpaid fines and notices that have been referred to a court due to non-payment where the court orders the fine to be paid, are treated as a conviction and will be assessed by the UKBA against the sentencing threshold for a non-custodial offence. If an individual has received an Anti-Social Behaviour Order (ASBO) it will not be assessed as a non-custodial offence. However, the breach of an ASBO is a criminal offence.
The UKBA will also consider an applicant’s dealings with HM Revenue & Customs (HMRC). Particularly, the UKBA will make checks to ascertain that an individual has been diligent in paying their taxes. Particularly where individuals are self-employed, the UKBA will want to see evidence that they are paying taxes. If an individual is behind on their payments, or have not made any payments, the UKBA can view this as an indication that they are not of ‘Good Character’. It is important to note that payment of Council Tax is a legal requirement and failure to pay Council Tax will result in an individual failing to meet the ‘Good Character’ requirement.
Applications made on or before 12 December 2012
Where an application features a conviction and was been made on or before 12 December 2012, the UKBA will consider the application under the provisions of the Rehabilitation of Offenders Act 1974 (“the 1974 Act). Under the 1974 Act, a conviction becomes “spent” after a specified rehabilitation period.
Rahul Batra is the Director and Head of Department at Hudson McKenzie. Rahul Batra can be reached at firstname.lastname@example.org