The Good Character Requirement: Overstaying

Previously, overstaying the terms of a visa would show “bad character” and lead to a refusal, however there have been changes…

Applicants can apply for British Citizenship through naturalisation, after they have acquired one of the following:

  • Indefinite leave to remain
  • Settled status (EU Settlement Scheme)
  • Permanent Residency

Once the have acquired one of these statuses, they would have to fulfil 5 categories:

  1. They must be over 18 years old
  2. They must be of “good character”
  3. They must be currently residing in the UK
  4. They must meet the English language requirements
  5. They must pass the Life in the UK test

Overall, it seems fairly simple, however the “good character” requirement is the hardest to fulfill as it is most the subjective requirement; and the Home Office have recently imposed even further restrictions to this requirement.

Before 24 November 2016 a so-called “grace period of 28 days” from the expiry date of the visa would be permitted. This would allow migrants to renew their visa or make a further application, without being classed as an overstayer.

This has since been abolished, and the recent Home Office guidance on the good character requirement published on the 14-01-2019 reiterates this. Previous periods of overstaying will now only be disregarded in some very specific scenarios. Moreover, the application will take into consideration the applicant’s records across the last 10 years, preceding the date of application.  

The guidance states the following:

Discretion to overlook this breach will normally only be considered if it is the sole adverse factor weighing against the person’s good character; and

  • The person’s application for leave to remain was made before 24 November 2016 and within 28 days of the expiry of their previous leave, or
  • The person’s application for leave to remain was made on or after 24 November 2016, and the application did not fall for refusal on the grounds of overstaying because an exception under paragraph 39E of the Immigration Rules applied, or
  • The period without leave was not the fault of the applicant, for example where it arose from a Home Office decision to refuse which is subsequently withdrawn or quashed or which the courts have required the Home Office to reconsider.

On the one hand, the positive aspect of this guidance is that it offers migrants a certain amount of consistency, unlike previous amendments in the law. Applicant’s will now be able to be advised properly. In most cases, they will have to wait until the 10 years have lapsed; rather than making an application and paying the Home Office fees based on a vague provision.

Nevertheless, this is still very contradictory. The new guidance reviews the last 10 years; however, the British Nationality Act 1981 only reviews the last 3 years (if they are married to a British citizen) or the last 5 years (if they are not married to a British citizen).

Overall, it remains to be seen how the Home Office will put this into practice and whether a level of discretion will continue to be applied.