Phil Nash: Why the Home Office’s tightening of ‘good character’ criteria could lead to sinister outcomes for immigrants

Ben Wray

Phil Nash, correspondent for the Immigration Advice Service, examines the ‘good character’ criteria on immigration which the UK Government is seeking to tighten post-Brexit, arguing that it is overzealous and open to misuse

THREE years on from the 2016 referendum and uncertainty still continues to surround the UK’s departure from the EU. No deal, a hard Brexit, or even no Brexit at all remain distinct possibilities, and the country’s next Prime Minister faces a tumultuous few months trying to clarify the country’s position. 

Whatever Brexit finally looks like, it is already having a profound effect on the UK’s immigration criteria. The move to a new ‘skills-based’ system is currently scheduled for 2021, under which EU nationals will see their Free Movement rights usurped by hard redlines and bureaucracy.

As part of this change, the Home Office has signalled its intention to tighten visa and nationality requirements, including a new stricter British values test after Home Secretary Sajid Javid branded the current Life in the UK test a “pub quiz”. Even more critically given its very chequered past, the government is planning to tighten the “good character” criteria that all applicants older than 10 must meet in order to apply for British Citizenship or Settlement.                 

What is good character?

First introduced in 2014, and with no precedent in the 1981 British Nationality Act, the “good character” requirement is now often cited as grounds for refusing settlement claims. The list of desirable and undesirable characteristics and behaviours that make up this requirement covers obvious threats like terrorists and war criminals. However, it also allows the Home Office to refuse applications on the grounds of “financial soundness”, an umbrella term encapsulating everything from bankruptcy to non-payment of a council tax bill.    

Indeed, the “good character” clause has made news in recent years for its routine misapplication. Last year it saw 1,697 highly skilled migrants threatened with deportation and issued with a 322(5) paragraph in their passport. The 322(5) labels its holders a threat to national security and bans them from working, buying or renting property, or receiving NHS care in the UK. Outrageously, the recipients in this case were accused of only minor tax discrepancies. Labelled as deceptive and misleading, these migrants, many of whom had been living in the UK for decades and had British-born children, were even denied the right to produce evidence to fight their charges. 

Upon a review of four of these cases, the Court of Appeal found the use of 322(5) to be “legally flawed”. This is the very same criterion that in 2014 tainted 34,000 students as cheats over their mandatory English test, an incident recently described as “Britain’s forgotten immigration scandal”. 

Good character clampdown

Despite the Appeal Court’s findings – and the fact many of these students are still fighting for justice – the Home Office has deemed it proper to further tighten the “good character” clause this January. Extending the “three to five year” period stated in the 1981 British Nationality Act, now any migrant found guilty of overstaying their visa across a full decade, or who fails to declare a past misdemeanour, will have their application automatically rejected. Only cases where the overstaying “period of leave was not the fault of the applicant” are exempt, an ambiguously worded sub-clause seemingly designed to make counter-claims more difficult. It’s also worth noting that prior to 2016, the Government allowed a ‘grace’ period in which migrants found overstaying for 28-days could still make an application without being penalised for it. 

An applicant’s failure to mention a past offence – including infractions as minor as a driving or parking offence – could now be grounds for deeming them “deceptive” and therefore lacking “good character”. All previous “crimes” must be declared, even those spent over vast periods of time. Compounding these issues is the fact caseworkers are given wide margins of discretion over what “desirable behaviour” actually means, allowing them to reject applicants on increasingly tenuous grounds. 

The cost on families

The harm caused by this tightening of “standards” extends well beyond the applicants themselves. British-born children are often caught up in the chaos and find their own rights eroded. Families are being put under enormous financial strain by the cost of the “good character” test, and if parents fail as a result of the clause they are not refunded and must wait, under their current settled status, until their application is heard again. 

Inevitably this hits the least wealthy hardest. Without permanent residency or settlement, families on the margins of poverty are struggling to survive. According to the charity Unity Project, rejections of residency applications feed directly into increasing rates of poverty among British children, as they are denied access to benefits like social housing and free school meals. Of the 276 cases their report examined, 89 per cent had at least one British child, 95 per cent were from ethnic minority backgrounds, and 84 per cent were single mothers. 

An urgent rethink

The race to meet unattainable net migration goals has led to a long list of injustices and this looks set to continue under the latest clampdown. After 2021, all EU citizens looking to settle in the UK will have to pass a “good character” test that does not appear fit for purpose. 

The government’s so-called “hostile environment” is clearly taking affect, and soon EU-born citizens will also be caught in its net. Those applying for a Spouse Visa will be severely challenged by the high-income requirement, with many families broken up as a result. As many as 15,000 children are currently living without one or both of their parents in the UK as a result of visa requirements. If Britain does actually exit the EU, it is likely many more families will be tripped up by new visa laws that could well take affect overnight. 

Every country needs somewhat robust migration criteria, and yet these proposed changes to the British system appear overzealous and open to misuse. An undeclared parking ticket, for example, should never lead to an applicant being deemed a threat to national security. As Brexit looms, the “good character” clause in particular needs a serious and urgent rethink.

Picture courtesy of Foreign & CommonWealth Office

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