The FCA – Transformation to Assertive Supervision
Eager to ingratiate themselves with the new President-elect, the UK Government is apparently considering inviting Donald Trump on a state visit in 2017. This will be no ordinary visit, Donald Trump having the dubious honour of being the first sitting President who MPs have actually debated banning from the UK following a petition calling for that which attracted just shy of 600,000 signatures. At the time of the petition, Theresa May, then Home Secretary, publicly noted her disagreement with Trump’s call for a ban on all Muslims entering the United States and released a statement that noted ‘we will continue to speak out against comments which have the potential to divide our communities regardless of who makes them. We reject any attempts to create division and marginalisation amongst those we endeavour to protect’. While the statement did not refer directly to Donald Trump, the message was taken to be a veiled comment on his policy proposal and the petition.
Despite some stinging remarks about then-candidate Trump, the debate was more for show than with the intention of leading to any actual restrictions on his entry to the UK and the President Elect, who has a number of business interests in the UK, has since visited.
That said, with a looming state visit, I thought it would be worth considering whether Donald Trump could fall foul of any of the ‘good character’ requirements that apply to British nationality applications. Character, conduct and associations also apply when considering whether to admit someone entry to the UK. However as head of state from January 2017, Trump will be exempt from these restrictions so I thought the nationality criteria would be interesting to consider. This is particularly apt as Donald Trump’s mother was born in Scotland and he may therefore have a claim to register as a British Citizen on that basis. Children born abroad to British mothers prior to 1983 were not able to benefit from their mother’s British Citizenship due to a discriminatory distinction in the law which only permitted fathers to pass on British Citizenship. This has been subsequently rectified with a provision permitting adult children of British mothers to register as British. These applicants though, must still meet the ‘good character’ requirement.
There are a number of issues relating to Donald Trump’s background which could be interesting when considering whether he can be said to be of good character. While Donald Trump has no criminal convictions, the good character criteria here cover a far wider range of aspects about a person’s character, behaviour and associations. There is no definition of ‘good character’ in the British Nationality Act 1981, so a number of factors can be taken into account.
A cursory glance at the guidance issued to caseworkers, reveals the following potential issues a Trump application could throw up –
One area which a caseworker can consider is whether an applicant’s financial affairs were in appropriate order. By way of example, they note that a failure to pay taxes for which a person is liable can be a relevant factor. As Donald Trump broke convention by refusing to release his tax returns as part of the campaign, we can’t know whether this would be relevant (although leaked pages from his tax returns did reveal he claimed a $916 million USD loss and could have potentially relied on this to avoid payment of taxes for up to 20 years), but we do know that his companies have filed for Chapter 11 bankruptcy protection six times between 1991 and 2009.
The guidance states that where an applicant has been declared bankrupt or been a director or involved in the management of a company which has gone into liquidation, the decision maker will normally make further enquiries. An application can be granted if the declaration of bankruptcy was abroad or the company was liquidated over ten years ago, so it is unlikely that these bankruptcies would render an application hopeless. Where these exclusions don’t apply, the caseworker can look into the circumstances of the bankruptcy in more detail.
The guidance specifically states that an application will normally be refused where a person has relied on a recession in order to avoid payment of taxes or payment to creditors. Donald Trump’s claimed previous losses and subsequent avoidance of tax could certainly be relevant in other circumstances therefore.
Where an applicant’s activities were notorious and cast serious doubt on their standing in the local community, an application may be refused on good character grounds.
The bar to be cleared here is high, e.g. there must be evidence that a person has, by the scale and persistence of their behaviour, made themselves notorious in the community. While the anticipated reaction from the public and media should not unduly influence a decision, the decision maker should consider the potential public attention or press reaction a decision to grant citizenship may generate.
It is clear, in light of the petition which has already been generated that a decision to grant Donald Trump citizenship would attract considerable public attention. The question is whether Donald Trump’s behaviour has been serious enough as to make himself notorious. In the much publicised video released by Access Hollywood, it is widely accepted that Donald Trump bragged about his ability to sexually assault women due to his status. Donald Trump himself dismissed such comments as ‘locker room banter’. Could a caseworker refuse an application on the basis of notoriety on these grounds?
It is noted that there were multiple calls to ban ‘Roosh V’, the self-proclaimed pick up artist who wrote that rape should be legalised, from the UK earlier this year. A petition was signed by 80,000 people and Roosh V ultimately cancelled his visit before any exclusion order could be placed on him.
Although Donald Trump’s comments are of a different order, British Citizenship requires a very comprehensive assessment of good character so it is possible that this could at the least be an issue.
A caseworker will normally refuse an application where the person has engaged in activities that have or are likely to give rise to a risk to public order. Examples provided by the guidance include where speeches have been made with the aim of inciting discriminatory violence, inciting others to commit an offence or advocating violent disorder or overthrow of the state.
In an article by Garrett Epps at the Atlantic magazine in August 2016, they examined Trump’s comments about Hillary Clinton and the Second Amendment (the amendment to the US constitution which, in recognition of the necessity of a well-regulated Militia to the security of a free state prevents the infringement of the right of the people to keep and bear arms). Trump had allegedly told an audience that Clinton, “wants to abolish—essentially abolish the Second Amendment … If she gets to pick her judges, nothing you can do, folks. Although the Second Amendment people, maybe there is, I don’t know.”
The Atlantic referred to this comment as the ‘most direct, consequential call for political violence I can remember since the 1960s’ but ultimately found that he almost certainly had not broken the law. This was due to the narrow definition of ‘incitement’ in US law which requires that any lawless action that might be triggered by the incitement to be imminent and likely.
Donald Trump has also made comments directed at particular groups in society, most notably Muslims by suggesting they could be banned from the US and Mexicans who he started his campaign by referring to as ‘rapists’. In the days following his election, there has been a considerable upsurge in hate crimes, the Southern Poverty Law Centre counted more than 700 cases of hateful harassment or intimidation in the US between 9th November and 16th November. While it is not possible to directly link these incidents to Donald Trump, there are reports that his campaign rhetoric and his name have been cited by the perpetrators and included in offensive graffiti which has appeared in the days since the election.
The above tongue in cheek review of Donald Trump’s potential eligibility to acquire British Citizenship is a timely reminder of the good character requirements applicants are subject to. It isn’t clear that Donald Trump would necessarily fall foul of these criteria, and even if he did, this won’t be standing in the way of a President visiting the UK.
At a time when immigration and immigrants are subject to on-going criticism and being used as a scapegoat both in the UK and the US along with increasingly stricter immigration rules, it is also worth considering what we value about those who seek to live in the UK and naturalise here. The good character requirements for British nationality have been expanded in recent years and now, for example, prohibit those who illegally entered the UK from applying for ten years. This is the case even if the person subsequently made a successful application to be recognised as a refugee and had good reasons for fleeing to the UK in the first place.
The issues we think are so beyond the pale they should doom an application for British Citizenship to failure, and the fact that we can take a very different approach to such perceived character flaws when they inhabit the person of the President Elect are issues worth thinking about, as is our capacity to forgive. Theresa May, now Prime Minister was quick to congratulate and Boris Johnson has warned opposition MPs not to criticise Trump lest they damage UK interests.
Within an area of law where our ‘values’ are often cited as front and centre to the decisions made, maybe we should ask why Donald Trump should be more deserving of this forgiveness then a refugee who entered the UK illegally?
You may also be interested in reading our other blogs for further updates and opinion on immigration related issues.
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