A Dangerous Journey?: The Good Character Requirement, Naturalisation, Trafficking, and Discrimination against Women

BY CATHERINE BRIDDICK

Following the Home Office’s change to immigration staff guidance on assessing the good character requirement in nationality applications, Catherine Briddick, human rights and refugee law scholar at the University of Oxford, explains how the new guidance disadvantages women.

There are many who may well think there are few things as dangerous as a Home Office ‘clarification’ of their position. Unfortunately, they will not be disappointed by the Home Office’s recent ‘clarification’ on the impact of dangerous journeys on grants of citizenship. To naturalise as a British citizen a person must, among other things, be of good character (British Nationality Act 1981, s. 6 and schedule 1). What good character is or involves is not defined in legislation. Instead, Home Office guidance sets out the kinds of behaviour that should be taken into account. On 11 February 2025 the Home Office published a new version of its caseworker guidance on the good character requirement. This introduces new paragraphs or, in the language of the revised version, makes changes to ‘clarify’ that applications made after 10 February 2025 by people who entered illegally ‘will normally be refused’.

It goes on:

‘A person who applies for citizenship from 10 February 2025 who has previously arrived without a required valid entry clearance or electronic travel authorisation, having made a dangerous journey will normally be refused citizenship.

A dangerous journey includes, but is not limited to, travelling by small boat or concealed in a vehicle or other conveyance. It does not include, for example, arrival as a passenger with a commercial airline.’

The reference to applications being ‘normally’ refused indicates room for the exercise of discretion. At the end of the guidance a section entitled ‘Exceptional grants’ discusses the kinds of ‘mitigating circumstances which mean it would be appropriate’ to decide an application in a person’s favour and to naturalise. One example given is:

‘a person who entered illegally 14 years ago would normally require refusal of citizenship as an illegal entrant but has been recognised as a victim of trafficking and subsequently granted refugee status. They haven’t acquired any other notable adverse character issues during their residency, indicative that on a balance of probabilities they are now of good character.’

Other examples relate to situations where offences were committed over 40 years ago, or where a young person committed an offence and then engaged in voluntary work for a sustained period.

The language used and the examples given indicate that a very high threshold must be met before discretion can be exercised in an applicant’s favour. When challenged on this, Home Office Minster Lord Hanson of Flint confirmed that:

‘…the presumption is that those who have arrived illegally will find their application turned down, unless they can provide a range of circumstances which are exceptional, compelling and mitigating, and where the Secretary of State may therefore choose to apply discretion to grant citizenship on an exceptional basis.’

Even where a person has compelling circumstances to raise, they may be deterred from applying by a combination of cost (£1,630) and the limited prospect of review (rather than appeal) should it be refused.

This change has significant implications for those who, fleeing persecution and other forms of serious harm, are compelled to make illegalised and dangerous journeys in order to access a jurisdiction that is safe, or to reunite with family members. Refugees who, for reasons relating to persecution or the cessation of protection, cannot apply for a passport from their country of origin will be particularly affected (as will others, see Sonia Lenegan’s analysis).

Questions relating to citizenship, its acquisition and deprivation, fall squarely within the ambit of the European Convention on Human Rights’ (ECHR) article 8 protection of the right to a private and family life. An article 8 challenge could be argued alongside article 14 as, drawing on the reasoning of the European Court of Human Rights (ECtHR) in Hode and Abdi v UK (2012), a protection-seeker’s mode of arrival may be an ‘other status’ on which they are discriminated. The ‘clarification’ certainly places the UK at odds with its Refugee Convention article 34 obligation to ‘as far as possible facilitate the assimilation and naturalization of refugees.’ Also relevant, given the absence of safe and legal routes to the UK, are the Convention’s article 3 prohibition on discrimination and article 31 protection from penalisation. ‘Systemic integration’ involves the interpreter of a treaty, in this case the ECtHR, taking into account other relevant rules of international law, such as the Refugee Convention. A challenge that drew on this concept, which argued that a refugee’s ECHR right to a private and family life should be understood and interpreted by reference to the Refugee Convention’s protections, can easily be envisaged.

Trafficking, Violence and Discrimination against Women

Recall that, according to the examples given in the revised guidance, being trafficked is, in and of itself, insufficiently exceptional or compelling to justify the exercise of discretion and the granting of naturalisation.

The Council of Europe Convention on Action against Trafficking in Human Beings defines trafficking as:

‘…the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.’

This definition contains three elements:

first, an action that relates to a person and generally their movement in some way: their recruitment, transfer, or receipt (although it does also include harbouring);
second, this movement is achieved through certain means: the use of force or the abuse of a position of vulnerability;
third, this action and these means are for the purposes of exploitation.

The Trafficking Convention is, therefore, concerned in particular with the protection of people who have been subject to particular forms of coerced, involuntary, or forced movement. Yet the very movement that may bring a person within its definition may also, under the new guidance, preclude a victim from naturalisation. An ‘illegal’ journey, one that occurs because the person is coerced or deceived, will violate human rights and rob a trafficking victim of their ‘good character’.

While assessing the scale of trafficking within the UK and Europe is challenging, women and girls are both more likely to be trafficked and to be trafficked for particular kinds of exploitation. The Trafficking Convention recognises and responds to this, situating its provisions in relation to non-discrimination obligations, violence against women protections, and gender-equality commitments. Some instances of trafficking will, per the relevant specialist international legal regimes, the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Council of Europe’s Istanbul Convention, entail both violence and discrimination against women. The CEDAW Committee has, for example, affirmed that:

‘…discrimination against women and girls includes gender-based violence, the prohibition of which has evolved into a principle of customary international law. Recognizing the gender-specific nature of the various forms of trafficking in women and girls and their consequences, including with regard to harms suffered, the Committee acknowledges that trafficking and exploitation of prostitution in women and girls is unequivocally a phenomenon rooted in structural, sex-based discrimination, constituting gender-based violence, and is often exacerbated in the contexts of displacement…’

While the guidance’s interpretation of the character requirement appears to be gender-neutral in its treatment of trafficking victims, it disadvantages women, framing forms of gender-based violence and discrimination as matters of individual choice and ‘bad’ character.

Indirect discrimination is an effects-based concept that enables the scrutiny of rules and policies that appear to be neutral for their impact on people who share certain protected characteristics. Different legal regimes define discrimination in different ways but, following the jurisprudence of the ECtHR in cases like Hode and Abdi or Biao v Denmark (2016), it can be defined as unjustified differential treatment that relates to a protected ground. As women will be adversely affected by this element of the policy and ‘clarification’, it may be impugned as indirectly discriminatory on the grounds of sex (in conjunction with ECHR articles 4 and 8). While space precludes discussion of whether and how such gendered disadvantage may be justified in law, in my view there are no sufficiently weighty reasons here. Such discrimination-based arguments could be made alongside those advanced above and those that contest the changes on the basis that they unlawfully penalise all trafficking victims.

Conclusion: Clarification, Continuity or Change?

The Illegal Migration Act 2023 contains provisions that prevent ‘ineligible people’ from becoming British (sections 31 and 32). It also seeks to ‘disapply’ many of the already weak protections available for trafficking victims, including recovery periods and residence permits (section 22). It justified the latter on the basis of:

‘…a number of factors including the pressure placed on public services, the large number of irregular arrivals and the loss of life caused by arrivals from illegal and dangerous journeys, including via small boat Channel crossings.’

At the time of writing, the trafficking provisions are not in force and face repeal by the Border Security, Asylum and Immigration Bill 2024-25 (see section 38(1)(d)). The broader citizenship bar is in force (the Act itself having been gutted by SI 2024 no 815), but also faces repeal (section 38(1)(e)). It is very troubling that reasoning analogous to that used in relation to the Illegal Migration Act is resurfacing here. If the Government does wish to give trafficking victims ‘the clarity and peace of mind they need to move on with their lives’ then it has to abandon measures, such as these, which characterise as ‘adverse character issues’ the very circumstances that have violated their rights. More broadly, no refugee or trafficking victim should have the injustice of displacement compounded by exclusion from the political community that has assumed obligations for their protection.

Catherine Briddick is Andrew W. Mellon Associate Professor of International Human Rights and Refugee Law at the Refugee Studies Centre, University of Oxford. She has been published widely in leading academic journals, her most recent article being Resisting Domestic Violence. Her book, Violence against Women and Regimes of Exception, will be published by OUP in 2025. Catherine is also a non-practising barrister, a member of the Editorial Board of International Journal of Refugee Law and on the Board of Trustees of Women for Refugee Women.

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