A person can apply for naturalisation and become a British citizen if they satisfy all the requirements. Some of these requirements include suitability requirements, eligibility requirements and passing the Life in the UK test.

If you are looking to apply for British citizenship, new changes to the good character requirement guidance mean that you can now apply even if you have previously overstayed. Contact us now, Mahfuz and his team will be more than happy to help!

Under the British Nationality Act 1981, it is mandatory that all applicants must satisfy the good character requirement.

Factors that usually breach the good character requirement would be if you have previously entered the UK illegally, overstayed your visa, or breached the Immigration Rules. The Home Office will look at any breaches dating as far back as 10 years prior to the citizenship application. As a result, in the past this requirement has prevented a number of people from being able to obtain British Citizenship.

This meant that lots of people who had permanent residence in the UK often found it difficult to apply for British Citizenship. In those 10 years if person has overstayed, entered illegally etc they would fail their British citizenship application.

Good character guidance updated for Nationality and Borders Act 2022

However, the Home Office has updated its guidance on good character requirement to adhere to the changes made in the Nationality and Borders Act 2022.

The changes now state that where a person has committed previous breaches of the Immigration Rules such us illegal entry, overstaying and absconding, these breaches may be disregarded in consideration of an applicant’s good character provided that all the following apply:

• The person is applying for naturalisation as a British Citizen or registration after 28^th June 2022
• That person holds Indefinite Leave to Remain
• There are no concerns regarding the persons character which have arisen following the grant of Indefinite Leave to Remain

Accordingly, from 28^th June 2022, all with indefinite leave to remain (ILR) will be able to make an application for naturalisation without concern of their previous breaches of immigration rules.

Our comments

We welcome this much needed change to the immigration rules. We believe it was very harsh that periods of overstaying that happened for a very short period, many years ago, has prevented people in obtaining British citizenship. There are those who entered the UK illegally to flee danger and were subsequently granted refugee status who have also been unable to obtain citizenship.

With the UK government seeking to prioritise growth during a time of economic turbulence, they are reportedly planning to loosen immigration controls and increase the numbers of workers entering the UK. The latest relaxation of the good character guidance seemingly forms part of their plan to ensure that the UK is able to retain immigrants.

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James Cook

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By Zeyu Huang

The UK government has recently introduced new regulations under which lowers the bar for ruling an asylum claim inadmissible. An asylum-seeker is a person who has left their country and is seeking protection from persecution and serious human rights violations in another country, but who hasn’t yet been legally recognized as a refugee and is waiting to receive a decision on their asylum claim. Seeking asylum is a human right. Therefore, everyone should have the right to enter another country to seek asylum.

The new rules mean the Home Office does not have to consider the claim in the UK if they rule that another country – a “safe third country” – should in fact be responsible for your asylum claim.

What are the new sections of the Nationality and Borders Act 2022 which relate to inadmissible asylum claims?

The Nationality and Borders Act 2022 inserted sections 80B and 80C into the Nationality, Immigration and Asylum Act 2002 to provide a wider scope for asylum claims to be treated as inadmissible. As pursuant to the new rules, Home Office may declare an asylum claim inadmissible and thereby hold it for an indefinite period, on the ground that there is a connection to a safe third State.

According to Section 80C, there are five conditions of the meaning of the connection to a safe third country:

1. The claimant has been recognised as a refugee in the safe third county and obtained the access to protection under the Refugee Convention in that State.

2. The claimant has otherwise been granted protection in a safe third State. He would not be sent from the safe third State to another State, unless it is in accordance with the Refugee Convention or Article 3 of the Human Rights Convention.

3. The claimant has made relevant claim to the safe third State and the claim has not yet been determined or has been refused.

4. The claimant was previously present in and eligible to make a relevant claim to the safe third State. And it would be reasonable to expect them to make such a claim and they failed to do so.

5. In the claimant’s particular circumstances, they would have reasonably been expected to have made a relevant claim to the safe third state

The definition of “safe third State” is in Section 80 B:

(4) For the purposes of this section, a State is a “safe third State” in relation to a claimant if:

(a) the claimant’s life and liberty are not threatened in that State by reason of their race, religion, nationality, membership of a particular social group or political opinion,

(b) the State is one from which a person will not be sent to another State:

(i)otherwise than in accordance with the Refugee Convention, or

(ii)in contravention of their rights under Article 3 of the Human Rights Convention (freedom from torture or inhuman or degrading treatment), and

(c)a person may apply to be recognised as a refugee and (if so recognised) receive protection in accordance with the Refugee Convention, in that State.

What do the new rules on inadmissibility mean?

In practice, unless a claimant arrives in the UK on a valid visa, asylum seekers will likely need to travel across land through “safe countries”. Most asylum seekers making claims after 28 June 2022 are therefore likely to be treated by the Home Office as having made an inadmissible asylum claim.

Moreover, according to Section 80B, a declaration that an asylum claim is inadmissible is not a decision to refuse the claim and, accordingly, no right of appeal under section 82(1)(a) (appeal against refusal of protection claim) arises. It can therefore only be challenged by Judicial Review.

Conclusion

There have been delays in asylum decisions from Home Office for a long time. The new regulations of Sections 80B and 80C on inadmissibility have already caused further delays in asylum decisions. Such delays render their inability of settlement and work in UK, which exacerbates their poverty. According to the government’s own report, the majority of individuals subjected to this limbo are genuine refugees who will be allowed to remain in the United Kingdom in the long term.

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James Cook

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By Lily Dai

Refugees who come to the UK are not always eligible for asylum seeker accommodation. Section 4(2) of the Immigration and Asylum Act 1999 allows for support to be provided to refused asylum-seekers if they meet the following eligibility criteria:

• They must be destitute. A person is destitute if: “… he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met) or (b) he has adequate accommodation or the means of obtaining it, but cannot meet other essential needs”.
• They must fall into one of the criteria in Regulation 3(2): they are taking all reasonable steps to leave the UK or facilitate their departure – reg 3(2)(a); 

1. they are unable to leave the UK due to a physical impediment to travel or for some other medical reason – reg 3(2)(b).

2. that in the opinion of the Secretary of State there is no viable route of return to their country of origin – reg 3(2)(c).

3. they have been granted permission to proceed2with an application for judicial review of the decision on their asylum claim – reg 3(2)(d).

4. the provision of support is necessary to avoid breaching their human rights – reg 3(2)(e).

Keep reading to learn more about the case.

Background of the case 

The full title of the case is as follows: R (on the application of Parul) v Secretary of State for the Home Department [2022] EWHC 2143 (Admin). 

Shajmin Akter Parul is a Bangladeshi who arrived in the UK in 2009. She made several claims including asylum and leave to remain in 2010 and 2017, but these claims have not been successful. Subsequently, she also made further submissions in respect of her status in the UK. However, these are still being considered by the Secretary of State for the Home Department (‘SSHD’).

Unfortunately, Parul suffers from multiple chronic medical conditions. She has been receiving treatment for these medical conditions from a GP in Tower Hamlets. On 26 March 2021, Parul was moved by the SSHD to Seth Court Accommodation Hostel, which is about 75-minutes from Tower Hamlets. On 13 January 2022, a charity helped Parul make a dispersal request to the SSHD for her to be relocated to be closer to her GP and her family in Tower Hamlets.

On 27 January 2022, she sent the SSHD a PAP letter regarding the request. The SSHD confirmed that Parul’s relocation request was granted on 3 March 2022. Following on from that, Parul emailed the SSHD 3 times in March to ask if a suitable accommodation had been found. However, the SSHD replied to her on 21 April 2022 saying that there is no suitable accommodation that can be sourced. In her reply to the SSHD on 12 July 2022, Parul emphasized again on the necessity and urgency of securing a suitable accommodation.

Given the above, Parul applied for a judicial review of the failure of SSHD to provide her with suitable accommodation pursuant to section 4, Immigration and Asylum Act 1999 (Section 4). The failure by the SSHD is unlawful on 4 bases:

• it breaches the Defendant’s duty to source accommodation within a reasonable period of time
• it breaches the Defendant’s own guidance
• it breaches the Defendant’s statutory duty to make reasonable adjustments under sections 20 and 29(7), Equality Act 2010 (“the Equality Act”); and / or
• it is unreasonable

In addition, Parul submitted that on the date SSHD had accepted that Parul appeared to be destitute, the provision of accommodation was necessary to avoid an imminent prospect of a breach of Article 3.

The SSHD’s position is that, while they agree that Parul should be rehoused in suitable accommodation in Tower Hamlets, the delay in finding the accommodation has not been unreasonable because none is available. SSHD also submitted that there is no imminent prospect of a breach of Article 3 as Parul was originally accommodated in March 2021 and they have therefore fulfilled their section 4(2) duty. They claim that the subsequent failure to relocate was because of the significant shortage of properties of the nature which Parul sought in Tower Hamlets.

Judgement

Notably, SSHD had filed no evidence in support of their defence. For example, whether Parul’s case had been prioritized by SSHD, records of accommodation stock, and/or the provider’s void properties.

Steps had been taken to look beyond the contract with the provider or the dates to search for accommodation for Parul. Even if there was no breach of any section 4(2) duty because the SSHD originally arranged the accommodation for Parul, the failure to relocate her within a reasonable period would still be unlawful and unreasonable given Parul’s serious medical conditions and her specific needs.

Given the above reasons, a mandatory order was deemed appropriate. Consequently, suitable accommodation should be secured within 8 weeks of that order.

Conclusion

SSHD is under a duty to provide a suitable accommodation within a reasonable period of time, pursuant to Section 4 of Immigration and Asylum Act 1999. What would be considered reasonable is for the Court to determine on the facts of the case. In this case, apparently, there is an imminent need for the asylum seeker to be relocated to a more suitable accommodation. Once SSHD has accepted that the asylum seeker is destitute, the duty to actively seek a more suitable accommodation arises to avoid a breach of Article 3.

Finally, as immigration advisers, it is important to always consider the merits of each individual case instead of blindly following the immigration rules. The court tends to be more compassionate to individuals who have serious medical conditions or any other specific difficulties.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on [email protected].

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

James Cook

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