Can naturalisation be refused for failing the “good character” requirement?
We already touched on the good character requirement in naturalisation applications in a previous post on “super citizens”. This is a common requirement in the citizenship laws of many countries. If we focus on the British context, we see that there is no definition of “good character” in the British Nationality Act 1981. The Home Office, however, issued a 53-page guideline which explains the factors to consider when deciding on an applicant’s character. While the list of factors that are taken into account in deciding on good character is non-exhaustive, it is still to be welcomed because expectations regarding loyalty and character have been notoriously unpredictable in citizenship law and can easily be abused for political motives.
The list of offences that can potentially lead to a rejection for lack of good character is long, and the problem for the applicant for naturalisation is that it is not just about convictions but about his/her behaviour generally. The list runs from obvious grounds for refusal such as terrorism and war crimes to fines imposed under administrative law. Immigrations lawyers advise applicants to always be honest, even about parking offences, as “there is more danger from failing to disclose and being accused of deception than from refusal on good character grounds because of the conviction itself”.
Indeed, in some countries there have been cases where a person who acquired a nationality by naturalisation was later found to have personal data that are considerably different from those mentioned in the naturalisation certificate. This does not necessarily imply bad faith on the part of the applicant. It may be that he fled from his country using the passport of a similar-looking acquaintance and later naturalised based on the details described on the passport. It would be a bad idea for the person to later want to correct this and use his actual identity, because the authorities may argue that the mismatch between his actual identity and the naturalisation certificate justifies the cancellation of the naturalisation. While the authorities may claim that the nationality was never acquired in the first place due to this mismatch, however small or insignificant the omission, the individual will obviously experience this as the loss of nationality. Such situations have been described as quasi-loss of nationality in the literature.
Another issue concerns whether the State is under an obligation to justify its position and decisions in the pre-naturalisation phase. Little research has been done on the question whether countries provide that a negative decision on a naturalisation application has to be motivated; whether the individual can challenge the rejection of naturalisation in court; or whether an individual can challenge a negative decision on an integration or language exam in court.
A recent Irish case, as reported by the Irish Times, may bring some clarity on this issue. A man who has held refugee status in Ireland for 25 years has been denied naturalisation on several occasions, without knowing why. The Irish Times speculates that the core issues at stake in the pending court case include “whether the grant of citizenship is within the unfettered discretion of the Minister for Justice and, if so, whether an applicant can rely on any procedures for their benefit … Other issues include whether national security issues need to be disclosed to an applicant for citizenship in such a way as to enable them to meet, or make any relevant representations about, those concerns before any decision against a grant of citizenship is made”.
Finally, the Irish Times thinks that a further issue is “whether the European Union Charter of Fundamental Rights and Freedoms governs the application for and refusal of citizenship by the Minister”. It is also possible, however, that the Court will take into consideration the Rottmann and Genovese decisions by the CJEU and ECtHR, respectively, on which we reported previously.
Questions relating to judicial review of administrative practices in the field of citizenship law, or whether individuals can challenge citizenship-related decisions in court have come more to the fore in the aftermath of these decisions. It is also still undecided whether rejections by the State such as those in the Irish case are compatible with the Genovese judgment if it is shown that the applicant has established such close ties with the country that these ties effectively constitute a substantial part of his or her social identity as protected under Article 8 of the ECHR.
Author: Dr. Olivier Vonk