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Problems with the Home Office’s Controversial ‘Good Character’ Test

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About The Author

Hal Fish (Guest Contributor)

Hal Fish is a content writer and political correspondent for the Immigration Advice Service – the UK’s leading organisation of immigration lawyers.

Remember, remember always, that all of us, and you and I especially, are descended from immigrants and revolutionists.

Franklin D. Roosevelt

This article was written by Hal Fish, a content writer and correspondent for the Immigration Advice Service – the UK’s leading organisation of immigration lawyers.

In the weeks, months, and now three years since the 2016 EU referendum, Britain has struggled to position itself into a state of clarity: the nation’s post-Brexit vision remains as murky as ever. Without a sure sense of direction, or anyone fit to lead the country out of this widespread confusion, the options of a no-deal Brexit, a hard Brexit and even no Brexit are all still very much on the table.

Despite the above, however, the referendum has influenced a great change in the nation’s immigration rules. Scheduled for 2021 is the ‘skills-based’ immigration vision for all EU entrants, which looks set to implement strict standards on visa criteria and a replacement for Free Movement. In anticipation of these changes, the Home Office intends to tighten visa and nationality requirements. This article will discuss the new criteria and what the changes propose for the future.

The ‘Good Character’ criteria

In accordance with these new immigration plans, the ‘good character’ criteria, which all applicants over the age of 10 must satisfy in order to gain settlement or citizenship in the UK, is becoming a much more difficult test to pass. Ever since it was introduced in 2014, the ‘good character’ test has earnt itself a reputation for rejection and refusal. With no definition for the term listed in the British Nationality Act 1981, the Home Office constructed its own guidance of desirable and undesirable characteristics and behaviours. In addition to being checked for obvious concerns, such as being war criminals and terrorists, applicants were assessed for more minor notions, such as ‘financial soundness’, which includes history of bankruptcy, liquidation, debt, and non-payment of bills such as council tax. Problematically, however, with no actual definition for a ‘good character’, the test has picked up a nasty habit of turning away too many innocent migrants.

In 2018, 1,697 highly-skilled migrants were threatened with deportation and, incredibly, cautioned with a 322(5) paragraph in their passport. This implies that the holder is a terrorist and threat to national security. Consequently, the migrant is virtually banned from travelling anywhere, and is prohibited from working, buying or renting property, and receiving medical treatment in the UK. They may also be deported, with minimal notice, to their native country, which they may no longer have ties to – many of these individuals have lived in the UK for decades and have British-born children. And of those 1,697 applicants to be hit with the damaging 322(5) paragraph, minor tax discrepancies were the main reason for punishment. It does not seem proportionate at all.

Failings of the Home Office

To make things more difficult for the applicants, they are not normally allowed to produce new evidence to counter the Government’s accusations. This has frequently left migrants unable to defend themselves against unjust rulings. The Court of Appeal did, however, allow for four appeals to be examined in depth last year. This led to a damning indictment from the Court, which deemed that using the terrorism-associated paragraph was ‘legally flawed’. In one of the four cases - Balajigari and others v Secretary of State for the Home Department [2019] -  the Court also found ‘distinct unlawfulness’ as the Home Office had ‘failed to make an explicit finding of dishonesty’. The lack of opportunity to appeal was also criticised as unlawful by the Court in that same case since the Home Office were branding applicants as dishonest ‘without even considering evidence to the contrary’.

More evidence of the inept workings of the Home Office’s criteria can be highlighted in what has subsequently been phrased as ‘Britain’s forgotten immigration scandal’. Back in 2014, as many as 35,000 students were wrongly accused of cheating in 2014 in their mandatory English-language test – a test that international participants must pass in order to obtain a UK visa. In a fit of paranoia, Home Office officials declared those who had taken the test over a three-year period were unable to continue their study in the UK. Some students were accused of cheating on the test in cities they had never been to. Others who had never even sat the test were also among the accused. A great portion of these young individuals were then treated as immigration criminals despite fulfilling the rest of their Tier 4 Student Visa requirements and are still dealing with the repercussions today.

The new rules

And yet the criterion that was applied back then, to such catastrophic results, now seems set to be tightened even further. For instance, whereas Section 4(2)(d) the British Nationality Act 1981 currently states that applicants must not have been in ‘breach of immigration laws’ during a period of five years before they apply for British Citizenship or settlement, the new changes will provide that any migrant who has ever overstayed their visa within the last ten years or fails to declare a past wrongdoing will have their application automatically refused.

There is a grey area over this rule if the overstaying ‘period of leave was not the fault of the applicant’, but the wording of this potential exception to the law is ambiguous and seems vulnerable to conjecture. Due to the history of the Home Office being rather unsympathetic to applicants, it is hard to imagine a situation where applicants could successfully argue that any period of overstaying was not their fault, aside from children or survivors of domestic abuse.

Whilst there is some leniency on minor crimes when assessing an applicant’s ‘good character’ – such as driving and parking offences, or any other fixed penalty notices – failure to mention these kinds of past offences could be interpreted as ‘deceptive’ behaviour from an applicant who has, in the view of the Home Office, consequently demonstrated qualities not befitting a ‘good character’. This is not helped by the fact that the caseworkers that ultimately make the call on the applications are granted a wide margin of discretion for what actually constitutes ‘desirable behaviour’ or ‘desirable character’; based on past Home Office policies, discretion seems to result largely in the punishment of innocent people.

However, it would be a mistake to believe that it is just migrants that are affected by these policies: British children are being starved of their rights also as a consequence of harsher immigration policies. Indeed, those who are born in the UK to migrant families are expected to pay £1,012 towards their British citizen application once they pass the 10-year eligibility threshold. Children who came to the UK with their families, even as babies, face additional charges of £8,521 during these 10 years.

Falling through the cracks

Applicants who fail to meet the rigorous criteria of the ‘good character’ test (or those who simply cannot afford it) are fortunately still able to stay in the UK under their current settled status. However, those who failed the test do not get a refund for their refused application and must wait a long period before they can apply again. Without permanent residency and with no resources to public funding, many families on the margins of poverty are falling through the cracks.

With Brexit on the horizon, EU citizens will be subjected to the ‘good character’ test as soon as 2021. Add this to other proposed plans, such as the discriminatory Right to Rent scheme and new highly restrictive visa rules, and it looks as if things cannot get much more difficult for those EU migrants looking to settle in the UK. These unnecessary laws are already damaging families within the country: The Children’s Commissioner report, Skype Families, found as many as 15,000 children currently living in the UK are separated from a parent due to visa restrictions. This figure will only rise when the ‘hostile environment’ is extended to EU nationals, especially as individuals may accidentally overstay their visa amongst all these confusing new law changes.

For example, in the event of a no-deal Brexit, EU entrants must apply for European Temporary Leave to Remain, which expires 36 months after the applicant receives it. If all goes to plan and we leave the EU with a deal this October, the UK will enjoy a smooth transitional measure between 2019-2021 in which EU citizens will be able to continue entering the country and able to apply for Settled Status. However, in the event of a no deal, the transitional period is lost: from 2019 to 2021 before the plan comes in, EU entrants will have to apply for this temporary scheme; once the temporary scheme expires after 36 months, EU entrants must then meet the immigration rules or leave the country.

Conclusion

It is without doubt that individuals must satisfy a certain set of criteria if they want to come and live in Britain. However, the current ‘good character’ test seems to needlessly overstep the line with its overzealous conditions and ambiguous definition. The government seems happier to extract as much money as possible out of hopeful applicants than to actually give those applicants a fair shot at British citizenship. The standards and principles of the system need to be reassessed and reworked, not simply tightened. Failing to mention a past speeding ticket is hardly the first warning sign of a future threat to national security.

Evidently, without radical reform to the way caseworkers handle applications, more and more innocent migrants and citizens will slip through the net. Yet, in the midst of emerging scandal after scandal, one cannot help but wonder how many current British nationals would struggle to meet the requirements laid out by the Home Office if they too were subjected to the same levels of overzealous scrutiny.

The Immigration Advice Service have also published similar articles on this topic to CommonSpace and CommentCentral.

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Tagged: Anti-Terror, Brexit, Discrimination, Human Rights, Immigration

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