On 25 July this year, changes to the British Nationality Act 1981 (as amended) came into force, removing the ‘good character’ requirement for certain applications to register as a British citizen.
In the past, some children born to British parents were not automatically classed as British citizens, due to discriminatory provisions in British nationality law.
While this was rectified by allowing those affected to register as British citizens, applicants had to show they were of ‘good character’ – which they wouldn’t have had to do if they were born British citizens under the law.
Two separate UK court judgements found that imposing the good character requirement in these applications is discriminatory and contrary to the European Convention on Human Rights (ECHR). The British Nationality Act (1981) (Remedial) Order 2019/1164 has now been put in place to mitigate this discrimination.
British nationality law is complex and this Insight looks only at what has changed and who is affected.
What is the ‘good character’ requirement?
Before the Order came into force, in order to grant British citizenship in almost all categories, the Home Office had to be satisfied the applicant was of good character. The new Order removes the good character requirement from applications for registration as a British citizen under the BNA 1981 sections 4C, 4G-4I and in some instances 4F.
The requirement was, until this change, applicable to almost all applicants over 10 years-old and still remains in force for other registration and naturalisation applications.
While there is no statutory definition of good character, factors to consider for decision makers are set out in the Home Office’s latest policy guidance on the requirement.
It applies to new applications made after 12 January 2019 and explains:
‘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.’
The guidance provides an inexhaustive list of types of behaviours which may cause a person to fail the good character requirement, including criminality, deception and dishonesty, and previous breaches of immigration law. The guidance contains specific instructions for assessing the good character of children between 10 to 18.
Who will be affected by the change in law?
Children born overseas to British mothers before 1 January 1983
Before the BNA 1981 came into force on 1 January 1983, British mothers who gave birth to children overseas could not pass their British citizenship onto them. British citizenship could only be passed through the male line, which meant that children born overseas with only a British mother, and not a British father, were not automatically born British citizens by descent.
This was rectified under the BNA 1981 for those born to British mothers overseas after 1 January 1983. However, for those born to British mothers overseas before 1 January 1983, section 4C was introduced into the BNA 1981 by the Nationality, Immigration and Asylum Act 2002. Section 4C was amended and ultimately allowed such persons to apply for British citizenship by registration, if they met the ‘good character’ and other requirements.
Children born to unmarried British fathers before 1 July 2006
The second, related issue, is that until 1 July 2006 unmarried British fathers could not pass their British citizenship onto children at birth. This law was in place up until 1 July 2006 when the definition of a ‘father‘ was changed for the purposes of British nationality law. To rectify this discrimination, those born to unmarried British fathers prior to 1 July 2006 may be able to register as British citizens under section 4G-4I or s4F of the BNA 1981– if they meet the requirements.
People belonging to the two categories above will now no longer have to meet the ‘good character’ requirement when applying to become a British citizen. An applicant will still need to meet any other requirements, including any relevant fees. Generally, the fee for registration is £1,012 for a child and £1,205 for an adult, although this will not be relevant to all applications.
Those who have applied for registration in the past and were denied British citizenship for failing the ‘good character’ requirement, or who were dissuaded from applying because of it, may now decide to apply.
Did the Government have to make the change?
The new Order is a remedial order, which means it is ‘made by a minister under the Human Rights Act 1998 to amend legislation which has been found to be incompatible with the European Convention on Human Rights.’
While the courts can make a declaration that legislation is incompatible with the ECHR the Government is not required to act on it.
In this Order, the Government is changing the law in response to two court judgments which found that the good character requirement -when applied to these specific registration provisions – is incompatible with Articles 8 and 14 rights of the ECHR.
- For background on the Order’s legislative process see the Joint Committee on Human Right’s Inquiry: British Nationality Act 1981 (Remedial) Order 2018.
Note: This Insight was updated on 16 August 2019 to clarify the situation for children born to unmarried British fathers before 1 July 2006 and that some applicants will not be required to pay a registration fee.
About the author: Hannah Wilkins is an Immigration and Asylum Researcher at the House of Commons Library.