British Citizenship After Illegal Entry: Home Office Clarifies Good Character Policy

Home Office good character guidance, illegal entry and asylum-seekers

Back in February 2025 the Home Office caused a degree of consternation in some circles by suddenly inserting some strongly restrictive words into its good character policy guidance for naturalisation applications (as we reported on 17 February 2025).

To put it short, it said that a migrant who had entered the UK illegally – including but not limited to via a “dangerous journey” – would “normally” be refused British naturalisation if at some point in the future they applied for it. This was without backward-looking time limit: anybody had ever done so, no matter how long ago it was, could be penalised. 

The important word here was “normally”, which told us that there is some discretion. But how much exactly?

Well, this version of the policy guidance was called Version 6 (policy guidance documents typically come in “versions”), and it did go into at least some detail about this. 

But because of some complicated legal manoeuvres in the courts – and consequently some naturalisation refusals were withdrawn – the Home Office evidently accepted that the policy guidance was incomplete or, to put it in another way, that it might be unlawful. And so, on 30 April 2026, the Home Office issued a new version, Version 7, which was designed to close any gaps.

In the meantime, in June 2026 the judicial review case of Ahmed Alibiari was held in the High Court, and the court ruled in a general way that such restrictive policy changes were legally acceptable. In this case it was Version 6 that was considered, not Version 7, but one might imagine that if Version 6 passed muster then the slightly softer Version 7 would also. 

But what is the difference between the two versions? The main difference is that the new version goes into more detail about how discretion might be exercised in the migrant’s favour. One of the subjects referred to here is the “section 31 defence”. 

This relates to section 31 of the Immigration and Asylum Act 1999, which incorporates Article 31(1) of the 1951 Convention Relating to the Status of Refugees into British law. 

Article 31(1) of the Convention states:

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1 [of the Refugee Convention], enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

This is the starting point; the British legislation starts in the same vein:

Defences based on Article 31(1) of the Refugee Convention.

(1) It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he —

(a) presented himself to the authorities in the United Kingdom without delay;

(b) showed good cause for his illegal entry or presence; and

(c) made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom.

So, where the migrant entered the UK illegally and then they claimed asylum then the section 31 defence might be available to them and if the defence was successful they would not be guilty of any criminal offence. 

but then the legislation goes into closer detail:

(2) If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, subsection (1) applies only if he shows that he could not reasonably be expected to have sought protection under the Refugee Convention in that other country.

This is more obviously restrictive than Article 31(1) and this exemplifies the commonly-asserted principle that an asylum-seeker should seek asylum in the first safe country they arrived in, but this is perhaps at least implied in Article 31(1) by the word “directly”. 

This is a big subject all on its own, but in any event how does this part of the criminal law interact with immigration law? 

Well, as the Home Office puts it in the new policy guidance document:

Applicants with a valid section 31(1) defence, must not be refused citizenship on the sole basis of the illegal entry … that featured in that defence; all other character factors must still be considered in full.

So this tells us that if a migrant enters the UK illegally and successfully uses the s31 defence then they should not at some point in the future have their application for British citizenship refused purely on the basis of the illegal entry. 

But we always thought that the s31 defence was in any case a rather murky area. For one thing the words about having come to the United Kingdom “directly” are nebulous (especially in an island nation such as the UK) and in practice they are treated flexibly. And for another thing “good cause for their entry or presence” also sounds nebulous. It appears that prosecutors employ the principle of whether the immigration offence was committed “as a necessary part of a refugee’s journey to the UK”, whatever that might mean exactly.

In connection with this there is a kind of feeling or idea that the defence works best with those whose asylum claim was ultimately successful. The British law does not actually say that you have to have been successful in your asylum claim to avail yourself of the defence but in practice it certainly helps to show that you are a “genuine” or “proper” asylum-seeker (our words). 

One complexity here is that if an asylum-seeker was prosecuted under the offence the court would not yet know whether the asylum claim was going to be successful or not and thus could not gauge accurately the strength of the defence. So in practice a prosecution may not happen until the asylum claim is resolved, and if the claim is successful a prosecution is unlikely in any case. But if the asylum-seeker is ultimately unsuccessful in their claim then a prosecution is a possibility.

Another thing that is very murky is this. In some cases migrants were prosecuted and convicted for their illegal entry and their criminal lawyer did not know about and did not tell them about the section 31 defence and they thus may have been wrongly convicted. It sounds strange but it is true. Such a person can now apply to the Criminal Cases Review Commission to try and get their conviction overturned and often these applications are successful. 

If you are affected by these areas we at GSN Immigration will try and give you useful advice. 

Oliver Westmoreland

Senior Immigration Lawyer