Immigration, British citizenship and Meghan Markle’s absence
You may already be rather tired of reading about and listening to news about the Duke and Duchess of Sussex and their plans to start a new life with baby Archie in North America, whilst potentially still being at least part time members of the royal family and transitioning to financial independence whilst travelling between the UK and Canada. Whilst, you may be scratching your head about what the various announcements from the royal family mean, spare a thought for the UK immigration solicitors and tax lawyers trying to unravel the Immigration and tax complexities of the royal couple’s new direction.
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The Megan Markle Immigration consequences
It is said that tax advisors, accountants and UK immigration solicitors are all pouring over the financial and Immigration consequences of a British prince, a former American actress and their dual USA and UK nationality child moving to live in the commonwealth country of Canada, before potentially moving to the USA.
Megan Markle and her family are not the first to find that what they thought was a straight forward fresh start is fraught with legal and financial consequences that probably weren’t fully appreciated until the couple’s announcement and the consequent analysis of the plans.
At the time of the royal wedding it was widely understood that the Duchess of Sussex would be applying for British citizenship as soon as she was eligible to apply for British nationality. Whilst it was hoped that any British Citizenship application would have been motivated by a desire to embrace the UK as her ‘home’ it also has to be said that there would be significant financial benefits had Megan Markle secured British nationality and renounced her USA citizenship.
The announcement stating the Duke and Duchess intend to balance time between North America (query initially Canada and at a later point the USA) and the UK, throws the British Citizenship plans into turmoil. For any family, if there is a plan to hop between continents and have homes in two or three or more countries, it is complex to juggle affairs but it is that much more complicated when one of you is a USA citizen and your husband is reported to receive a multi-million pound income from the Duchy of Cornwall estate via the generosity of your father-in-law, the Prince of Wales.
Whilst courting Prince Harry Megan Markle was entitled, as a USA citizen, to visit the UK for up to six months without requiring a visa to enter the UK. After her marriage her route to Indefinite Leave to Remain and to British Citizenship was via a spouse visa, but where do the plans to be based in Canada and to travel to the UK, on occasion, for part time royal duties, leave the Immigration plans?
The Duchess isn’t the first spouse to want to spend significant periods overseas whilst on a UK spouse visa but her decision to spend time in Canada may affect any plans to secure UK Indefinite Leave to Remain because she needs to have been in the UK for five years before being eligible to apply for ILR and her first spouse visa will have only been granted for a maximum period of thirty months. However, the spouse visa Immigration Rules say that on a spouse visa extension application the applicant for the spouse visa extension is only eligible for the new spouse visa if they intend to permanently live in the UK with their spouse. That seems to fly in the face of the announcements by the Duke and Duchess of Sussex and the Queen.
Royal watchers will be pleased to learn that there is a get out clause in the Immigration Rules that allows an applicant for an extension of a spouse visa to say that they were living overseas for ‘good reason’ and therefore be able to secure an extension to their spouse visa despite their time out of the UK. However, the good reason for absence from the UK has to be consistent with a plan to live with your spouse permanently in the UK. Will the Home Office accept that it was necessary to re-settle in Canada for work purposes when it could be argued that as part time royals the couple could have remained in the UK and travelled overseas to pursue their planned commercial ventures? Just as importantly, is there a plan to live in the UK at some point, whether it is Frogmore Cottage or elsewhere?
The issue of applying to extend the spouse visa is only the first headache for the Immigration advisors looking after the Immigration status of the Duchess. Should she wish to apply for British Citizenship in future then she will need to meet the residence requirement that applies to all British Citizenship applicants, regardless of their royal status.
Residence rules and British Citizenship applications
You may wonder why Prince Harry and Megan Markle would highly prize British Citizenship but if the Duchess of Sussex remains a USA citizen she will be subject to USA expatriate tax rules. Those rules are not for the faint hearted but in effect would potentially create a massive American tax bill (in addition to any UK tax bill) that could be avoided if the Duchess applied for British Citizenship and renounced her USA citizenship.
To go down the path of a British naturalisation application and to meet the residence requirements Megan Markle must not spend more than 270 days outside the UK during the three years prior to her British naturalisation application or more than ninety days outside the UK in the twelve months prior to her British Citizenship application.
The Immigration Rules on absences from the UK on British Citizenship applications under Section 6 (2) of the British nationality Act (where you are applying for British Citizenship and you are married to a British citizen) do provide for some limited exceptions to the UK residence requirement.
For example, you do not need to meet the three residence requirement if you are the spouse or civil partner of a British citizen in overseas Crown service.
When it comes to absences from the UK, Home Office officials will calculate absences based on passport or travel documents, Home Office records and Employment history or records. In the case of Megan Markle, the press interests in her whereabouts should make record keeping and absence checking relatively easy.
Home Office officials are allowed to exercise a little discretion when it comes to the 270 and ninety day rules on absences from the UK, namely:
• If you are applying for British nationality under the three year residence requirement, Home Office officials will only consider exercising discretion on absences if your absences are between 300 to 540 days in the three year period
• For absences over ninety days within twelve months, discretion may be exercised by Home Office officials if the absences from the UK are one hundred days or less. If the absences are from 100 to 180 days, the Home Office officials will assess if there were compelling reasons for the absences.
If absences, in the twelve months prior to submission of a British naturalisation application exceed 180 days, Home Office officials will only exercise discretion if the applicant for British Citizenship can demonstrate that there are exceptional circumstances that justify the grant of British nationality. However, when looking at the exercise of discretion, Home Office officials will require an applicant for British Citizenship to have spent at least one year (on a three year residence application) without substantial absences from the UK and if absences exceed 450 days the period of residence without significant absences must be at least two years.
The Home Office will consider the reasons for absences from the UK. For example, illness or family bereavement is a common reason for frequent absences overseas. However, whether living in Canada to pursue commercial interests or for personal reasons is seen as a reasonable reason for absences from the UK remains to be seen.
If you want to apply for British Citizenship but are concerned about your eligibility to apply because of the absence requirements the best option is to take expert legal advice on the timing of your application and the presentation of your case to ensure that you stand the best prospects of success in the Home Office exercising discretion and granting your British Citizenship application.
How can OTS Solicitors help?
OTS Solicitors are specialists in Immigration law and however complex your family circumstances our specialist ILR and British Citizenship solicitors can help with your Indefinite Leave to Remain or British Citizenship application. Call us on 0203 959 9123 or click here
London based OTS Solicitors are recommended for Immigration law in the two leading UK law directories, The Legal 500 and Chambers Guide to the Legal Profession . OTS Solicitors also have Law Society accredited solicitors status as trusted specialists in Immigration law.