Can I apply for British citizenship if I have a criminal conviction?
On the 30 September 2020 the Home Office published new guidance on assessing the good character requirement in British nationality applications. As British citizenship solicitors we are frequently quizzed about the good character requirement for a British naturalisation application, specifically, what crimes can affect citizenship in the UK. That is because British Citizenship applicants are understandably anxious about whether the mistakes of their youth or their traffic offence will prevent them achieving their goal of British Citizenship. In this article we look at the new Home Office guidance issued to Home Office officials on how to assess the relevance of a criminal conviction when looking at the good character eligibility criteria for a British citizenship application.
British Citizenship solicitors
If you are contemplating a British Citizenship application and want help with the eligibility criteria to determine if you can get a passport with a criminal record in the UK or your British nationality application then the British citizenship solicitors offer expert advice. Call the British Citizenship team at OTS Solicitors on 0203 959 9123 or contact us online. Appointments are available through video conferencing, Skype or by telephone appointment.
Criminal offences and British Citizenship applications
To successfully apply for British Citizenship under The British nationality Act 1981 you have to be of ‘good character’. The concept of good character isn’t defined in the Act but over the years the Home Office has issued guidance on what is meant by good character and the relevance of past criminal convictions on your good character. The latest guidance was only issued on the 30 September 2020.
British citizenship solicitors say that the good news is that there isn’t a blanket ban on successfully applying for British Citizenship if you have a criminal conviction. Whether you will secure British Citizenship with a criminal record will depend on the nature of the conviction, the sentence and a range of other factors. That’s because Home Office officials look at all aspects of your character, including any negative and positive factors, for example, criminal convictions and Immigration breaches. A decision on good character is then made by the Home Office caseworker on the balance of probabilities.
Do I have to disclose a criminal conviction?
In the British citizenship application process you are required to answer all questions asked of you honestly and fully and to inform the Home Office of any significant event (for example, a criminal conviction or a pending criminal prosecution) that could impact on whether you meet the good character test.
If you don’t disclose a conviction this could flag up honesty issues which go to your good character. That means that although your criminal conviction may not automatically bar you from successfully applying for British Citizenship your lack of candour may affect the outcome of your application.
You may think that your conviction is old or spent or took place outside the UK so isn’t relevant but an applicant for British Citizenship is required to disclose all convictions, regardless of whether or not they are ‘spent’ under the Rehabilitation of Offenders Act 1974 or where they took place. If you don’t disclose or you give inaccurate information about the offence or your sentence the Home Office official will look at whether the information you gave was misleading and if your British Citizenship application should be refused on the separate ground of deception.
What criminal convictions prevent you from getting British Citizenship?
Although having a criminal conviction doesn’t necessarily mean that your British Citizenship application will be refused, your record and its relevance to your good character is important if:
- Your criminal conviction is within what are referred to as ‘sentence based thresholds’
- You are or have been a persistent offender
- You committed an offence which caused serious harm
- You committed a sexual offence or your details are on a register.
What sentence based convictions will result in a refusal of British Citizenship?
Your application for British citizenship will normally be refused by the Home Office on the grounds that you don’t meet the good character eligibility criteria if:
- You received a custodial sentence of at least four years
- You received a custodial sentence of at least twelve months but less than four years unless a period of fifteen years has passed since the end of the sentence
- You were sentenced to custody of less than twelve months unless a period of ten years has passed since the end of the sentence
- You got a non-custodial sentence that is recorded on your criminal record and it took place in the three years prior to the date of your British Citizenship application However, if more than three years have gone by and you got a non-custodial sentences or an out of court disposal your British naturalisation application mustn’t be refused solely because of your conviction. However, the conviction can still be relevant even after three years where there are other issues, such as a history of previous offences.
What counts when calculating the length of a custodial sentence?
When you apply for British citizenship the Home Office look at the length of your criminal sentence, not the amount of time you served in prison.
Suspended sentences and British Citizenship applications
A suspended prison sentence is classed by Home Office officials as a non-custodial sentence provided that the suspended sentence isn’t activated by an applicant not complying with the suspension conditions or by re-offending. If a suspended sentence is activated the Home Office case worker will consider:
- The original suspended sentence
- The reason for the activation of the sentence
- The amount of time spent in prison when the original suspended sentence was activated.
Are overseas convictions relevant in a British Citizenship application?
The Immigration Rules and Home Office guidance says that any overseas conviction or non-custodial sentence has to be treated in the same way as one received in the UK. The Home Office official will therefore consider the sentence imposed by the overseas court.
There are some situations where you could be convicted of an offence overseas but the same behaviour isn’t a criminal offence in the UK. For example, living with a partner in a same-sex relationship. The Home Office guidance says that normally any conviction for behaviour that isn’t a criminal offence in the UK should be disregarded.
What is classed as persistent offending in a British Citizenship application?
Under the good character Home Office guidance a persistent offender is defined as a ‘repeat offender who shows a pattern of offending over a period of time’. This can be:
- A series of offences committed over a short period or
- Offences that escalate in seriousness over time or
- A long history of minor offences.
Persistent offending is considered relevant by the Home Office when assessing good character. The guidance says that a pattern of behaviour can justify refusing a British Citizenship application, even if the short sentences for each offence wouldn't normally result in the refusal of your application.
The Home Office caseworker will consider:
- The number of offences and
- The timescale of the persistent offending and whether they escalated in seriousness and
- The seriousness of the offences and
- The impact of the offences on the public.
The effect of non-custodial sentences and out of court disposals on British Citizenship applications
These types of non-custodial and out of court disposals include:
- A caution
- A reprimand or a final warning
- An absolute discharge
- A conditional discharge
- A fine – a fine must be declared and may result in refusal of your British citizenship application if the fine was received within the last three years. If the fine isn’t disclosed then your British Citizenship application could be at risk of refusal on the grounds of deception
- A community or non-custodial sentence such as probation or undertaking accredited programmes.
Will a fixed penalty affect a British Citizenship application?
A fixed penalty notice doesn’t normally result in your British naturalisation application being refused unless you didn’t pay the fixed penalty or there were later criminal proceedings resulting in a conviction. If there was a conviction the relevance of the conviction is the sentence received as that is what the Home Office official will take into account when considering your good character.
British citizenship solicitors do however issue a word of warning and say that if you have had multiple fixed penalty notices over a short period of time the Home Office guidance says this could ‘demonstrate a disregard for the law’ and impact on the good character assessment.
Can you apply for British Citizenship with a pending prosecution?
If you are facing a pending criminal prosecution you can still apply for British Citizenship but it is best to take legal advice from a British Citizenship solicitor about the timing and contents of your application.
The Home Office guidance states that British Citizenship isn’t normally granted if you have a pending prosecution as the decision should be deferred pending the outcome of the prosecution unless your application would have been failed for other reasons.
How can OTS Solicitors help?
Applying for British Citizenship can be complicated if there any potential good character flags. If you are contemplating making a British citizenship application but you are worried about the good character eligibility criteria or you are put off from making your British naturalisation application because of a criminal conviction then it is best to take legal advice on your application from specialist British citizenship solicitors.
British Citizenship solicitors
OTS Solicitors are specialist in Immigration law and British nationality. The firm is recommended for Immigration law in the leading law directories, Chambers Guide to the Legal Profession and the Legal 500. OTS Solicitors also have Law Society accredited solicitor status as trusted specialists in Immigration law.
For advice on any aspect of personal or business immigration law call OTS Solicitors on 0203 959 9123 to speak to an experienced British Citizenship and immigration solicitor or complete our online enquiry form. Appointments are available by video conferencing, Skype or by telephone appointment.