New judgement criteria facing migrants in post-Brexit Britain look set to foment existing injustices, says Olivia Bridge.

Tumultuous times have rocked Britain back and forth since the EU referendum. Yet, despite surpassing its three-year anniversary, Brexit has come to a stagnant standstill with virtually all options remaining on the table still and no leader (at the time of writing) at the helm to bring any further clarity.

However, regardless of the finalities over the divorce agreement, the Government are still transforming the immigration rules: the skills-based immigration plan for all EU entrants will apply as of 2021. In anticipation of the mammoth task at hand, the Home Office have begun tightening nationality and visa requirements, as well as hiking up fees.

A key crackdown on the rules involve the ‘good character’ criteria which all applicants over the age of 10 must satisfy in order to gain settlement or British citizenship. Yet the controversial criteria has become a prevailing common ground for refusal since its inception in 2014 – and has even been behind some serious scandals as of late.

Despite there being no definition of the criteria in the 1981 British Nationality Act, the Home Office constructed its own guidance of desirable (or undesirable) history and behaviours, the obvious including war criminals and terrorists. Caseworkers also assess an applicant’s financial soundness, such as bankruptcy, liquidation, debt and non-payment of bills.

Although seemingly a reasonable assessment, the criteria has racked up a reputation in recent years after it emerged 1,697 innocent highly-skilled migrants were threatened with deportation and, worse still, slapped with a 322(5) paragraph to their name. Placing a dark spot in their passports, migrants in this situation are restricted from travelling and are prohibited from accessing healthcare, working and renting or buying property since this clause brands the holder a terrorist and a threat to national security. On this occasion, the applicants were inordinately and disproportionately punished: The Home Office deemed all were deceptive due to minor tax discrepancies, even when the applicant demonstrated it was the fault of an employed accountant. Many had lived in the UK for decades and are parents to British-born children, yet were barred from producing new evidence to counter the Government’s accusations.

The Court of Appeal did, however, grant four appeals which were examined in depth. In a damning indictment, the court found the terrorism-associated paragraph to be “legally flawed”, especially since one case revealed caseworkers “failed to make an explicit finding of dishonesty” in the first place. Exacerbating matters, the court also found the firewall preventing applicants from appealing the verdict meant officials were de-facto rejecting applications and accusing migrants of dishonesty “without considering evidence to the contrary” which was also found unlawful.

To add to a series of errors, the ‘good character’ criteria was also once responsible for blanket-banning 34,000 students and deporting over 1,000 after the Home Office wrongly accused them of cheating in their mandatory English language test in 2014. Otherwise known as ‘Britain’s forgotten immigration scandal’ that’s bigger than Windrush, the painful five-year battle is still ongoing for the students who are still fighting to clear their name with hundreds still awaiting their appeal.

Yet the Home Office is cracking down on the criteria anyway. While the British Nationality Act 1981 state that applicants must not be in breach of any immigration laws – such as overstaying a visa – within a period of three to five years prior to applying, this boundary has now been extended to ten years. An exception to the rule would be if the overstaying period was “not the fault of the applicant” – although it is difficult to imagine a scenario in which a migrant could successfully vouch for their innocence, unless they were a child at the time or a victim of trafficking or domestic abuse.

Understandably, any past convictions of serious criminal activity will most likely result in a refused application – especially since crimes are never ‘spent’ for the purposes of immigration and nationality law. However, while driving and parking offences aren’t necessarily considered deceptive on their own, failure to declare them could jeopardise an application – and invoke similarly harsh punishments as the students and skilled migrants fell victim to.

The tightened rules also present numerous problems in the future, the first being that many EU nationals may accidentally overstay their visa in the midst of complex transitional periods, namely the 36-month European Temporary Leave to Remain status which is only available in the event of a no deal Brexit. As innocent a mistake overstaying a visa may be, any blurred time periods between visas will only pave the way for refused citizenship applications farther down the line.

Similarly, more UK-born children will fall through the cracks. A report by Unity Project already found that British children are being starved of their rights by being blocked from free school meals and social housing as a result of stringent immigration rules that are imposed on their parents. The extortionate costs to apply – which are also non-refundable – are plunging families into severe destitution with many parents deciding to overstay their visa while they raise the funds to apply. In a catch twenty-two scenario, parents are stuck between a rock and a hard place: without citizenship, families have little financial assistance, yet without the money to apply, parents have little choice but to fall foul of the law. Out of 276 cases, Unity Project found 89% had at least one British child while as high as 94% were unable to afford celebrating special occasions such as their children’s birthdays.

Arguably the most concerning aspect of the tightened criteria – aside from the fact a long-forgotten parking offence is hardly a reflection on someone’s character – is that Home Office caseworkers are still granted a very wide margin of discretion when handling applications. Migrants are scrutinised overzealously and, as mistakes have been made off the back of the Windrush fiasco and under the notorious ‘hostile environment’, there is still a lack of accountability from Home Office officials when their decision-making proves unlawful.

Such moves emerge out of a backdrop of a catalogue of injustices, including a decade-long dedication to reach an impossible net migration target that has only served to ruin innocent people’s lives. With further plans to improve the Life in the UK test – once branded a ‘pub quiz’ by Home Secretary, Sajid Javid – the mountainous new criteria that lies just beyond the horizon only begs the question: if British citizens were subjected to the same requirements, how many would be stripped of their citizenship?

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