The Duke and Duchess of Sussex, Prince Harry and Meghan Markle, have dominated recent news headlines with their announcement that they intend to “balance” their time between North America and the UK, reducing the time spent on official royal engagements. This change of direction raises many questions, of clearly which the most important is: how will this affect Ms Markle’s citizenship plans?
Getting indefinite leave to remain
Ms Markle’s previously indicated intention was to follow the five-year route to indefinite leave to remain (ILR), as laid out in Appendix FM of the Immigration Rules, followed by British citizenship. Once a British citizen, there is a good chance that Ms Markle would, in order to save the Windsor family accountants the unimaginable horrors of US expatriate tax rules, renounce her US citizenship.
The presumed first step towards ILR would have been getting a fiancé visa, valid for six months. After that, Ms Markle likely applied for and received limited leave to remain as a partner under paragraph D-LTRP.1.1. of Appendix FM, “for a period not exceeding 30 months”.
As five years is 60 months, this means Ms Markle will need another 30-month visa before she can apply for ILR. (Time spent on a fiancé visa cannot be included as part of the five-year qualifying period.)
The potential headache arising from the Sussexes’ new residency arrangements is the following rule on extending a partner visa:
E-LTRP.1.10. The applicant and their partner must intend to live together permanently in the UK and, in any application for further leave to remain as a partner (except where the applicant is in the UK as a fiancé(e) or proposed civil partner) and in any application for indefinite leave to remain as a partner, the applicant must provide evidence that, since entry clearance as a partner was granted under paragraph D-ECP1.1. or since the last grant of limited leave to remain as a partner, the applicant and their partner have lived together in the UK or there is good reason, consistent with a continuing intention to live together permanently in the UK, for any period in which they have not done so.
This might initially seem like bad news for Ms Markle’s visa application, but Home Office guidance provides some clarification on how exactly this requirement is to be interpreted:
In applications for further limited leave to remain or for indefinite leave to remain in the UK as a partner, where there have been limited periods of time spent outside the UK, this must be for good reasons and the reasons must be consistent with the intention to live together permanently in the UK. Good reasons could include time spent overseas in connection with the applicant’s or their partner’s work, holidays, training or study. If the applicant, their partner or both have spent the majority of the period overseas, there may be reason to doubt that the couple intend to live together permanently in the UK. Each case must be judged on its merits, taking into account reasons for travel, length of absence and whether the applicant and partner travelled and lived together during the time spent outside the UK. These factors will need to be considered against the requirements of the rules.
The Sussexes’ stated purpose in balancing their time at home and abroad is “to carve out a progressive new role within [the monarchy]”, to “work to become financially independent”, and “to honour our duty to The Queen, the Commonwealth, and our patronages”. This suggests that the couple’s pursuit of financial independence requires them to move abroad.
If arguing that, the Sussexes would need to provide evidence. In R (Chaudhry) v Home Secretary  EWHC 3887 (Admin), Mrs Justice Lambert held that if the claimant, Mr Chaudhry, wanted to claim that a need to work abroad to support his family was a “good reason” for spending time abroad, he would have to show both that he had sought and failed to find adequate work in the UK, and that he would seek to be permanently established in the UK after the successful application.
Of course, the Sussexes may have non-economic reasons for wanting to leave the UK, such as protecting their private and family life from press intrusion. It is rumoured that the couple intend to reside in Canada partly for this reason. However, they may have difficulty demonstrating that this important interest is necessarily well served by moving to Canada, as that country’s privacy laws fall short of the standard set by the European Union’s GDPR.
Exceptions to the residence rules
All this assumes that the Sussexes would be living in the US or Canada (perhaps in the lovely town of Sussex, New Brunswick) as private citizens, rather than official envoys. But if Prince Harry manages to wrangle himself an official role, and holds on to the usual diplomatic passport of members of the royal family, Ms Markle’s time abroad could qualify under the Crown servant exception to residency.
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This allows partners of British diplomats and officials overseas to spend the five-year residence period needed for ILR in the country of their partner’s posting. Essentially, time abroad counts as residence in the UK.
The stated intent of the Sussexes is to continue support the Crown, but it has not yet been publicly announced exactly how official or formal this service will be.
An interesting wrinkle would be if Prince Harry were to become (as a majority of Canadians apparently want), Governor General of Canada, following in the tradition of Queen Victoria’s third son, Prince Arthur. This would certainly make him a servant of the Canadian Crown — a separate institution from the British Crown, with its own Privy Council — but it is not clear whether this would qualify him as a Crown servant for the purposes of UK immigration law.
Even in the (highly, highly unlikely) event that Ms Markle could not convince Home Office civil servants that she intended to live permanently in the UK, and had good reason for being abroad, she could still be granted indefinite leave to remain at the discretion of the Home Secretary. There are ultimately no legal constraints on granting any form of immigration status. The real stumbling block would be the application for British citizenship itself.
Qualifying for British citizenship
If Ms Markle still intends to apply for British citizenship after receiving ILR, she may quickly run into trouble when calculating her permissible absences from the UK.
The general rule, as set out in Home Office guidance, is that the spouse of a British citizen must not have spent more than 270 days outside the UK during the three years prior to applying for British citizenship themselves, nor more than 90 days outside the UK in the 12 months before applying.
Taken literally, the phrase “balance our time” suggests that the Sussexes intend to spend around roughly 180 days a year abroad. That would add up to 540 days abroad over three years — much longer than the maximum generally allowed.
There is discretion to waive this requirement, as explained in the Free Movement ebook on naturalisation:
|Absences||Home Office approach|
|270 to 300 days total absence||Home Office guidance suggests that absences of up to 300 days will normally be disregarded.|
|300 to 450 days total absence||Discretion may be exercised where the applicant has been resident for the previous four years, without substantial absences within the first of those four years (the year outside the normal qualifying period).|
|450 to 540 days total absence||Discretion may be exercised where the applicant has been resident in the UK for the previous five years, without substantial absences within the first two of those years (the two years outside the normal qualifying period).|
|300 to 540 days total absence||
Discretion may be exercised to waive the requirements in the following circumstances:
• absences due to posting abroad on Crown Service,
• the unavoidable nature of the applicant’s career (e.g. a job that requires regular travel out of the UK), or
• exceptionally compelling reasons of an occupational or compassionate nature, such as a firm job offer where British citizenship is a statutory or mandatory requirement.
Is being Duchess of Sussex a compelling occupational requirement that genuinely needs British citizenship? Unsurprisingly, the case law is unhelpful on how an immigration tribunal might interpret the workplace needs of royal duchies. Similarly, does carving out a “progressive new role” for the monarchy require the Sussexes to be based abroad?
In addition, for any exercise of discretion where the excessive absences exceed 30 days, Home Office policy states that the applicant must show they have “established their home, employment, family and finances in the UK”.
Of course, this is only one part of the complex immigration tangle faced by the newly transatlantic royal couple. If they intend to stay in Canada for an extended period of time, they will have to apply for the relevant Canadian visas, and may eventually apply for Canadian citizenship. Fortunately, the UK has no objection to its citizens have multiple nationalities, and nor does Canada.
That said, the Sussexes may face one uniquely royal obstacle as Canadian citizens: no more titles from grandmother! Since the Nickle Resolution of 1919, Canadians have been ineligible to receive titles of nobility (even as wedding presents). This infamously meant that the media mogul Conrad Black had to renounce his Canadian citizenship in order to receive a UK peerage.
The Sussexes would be able to hold on to their existing titles — although they may choose, like the British-Canadian Thomson family, not to make use of them while in Canada.