She may be the Duchess of Sussex, but Los Angeles born Meghan Markle is not yet a British Citizen. As a member of the Royal Family, it may be assumed by some that she would have an automatic right to this status (after all, she has been married to the Queen's grandson for 18 months), but this is not the case. In practice, Ms Markle will have to acquire citizenship in the same way as other immigrants to the UK, by meeting the qualifying criteria. And this was likely all on track, but given recent events, there may now be a fly in the ointment. In this article, we will explore the impact of the recent change of plans by the Duke and Duchess of Sussex to live between North America and the UK, from an immigration standpoint, and what, assuming she still intends to work towards citizenship, she will need to do to qualify.
Ms Markle's immigration status is not a matter of public record, but, according to freemovement.org, it is likely she originally secured a fiance visa, which would have included a requirement to get married within six months. Following the marriage to Prince Harry on 19th May 2018, it is believed Ms Markle would then have secured a limited leave to remain visa as a partner for up to 30 months. To qualify for Indefinite Leave to Remain (ILR), Ms Markle would still then have required a further extension of 30 months, due to the five-year ILR qualification period for the spouse of a British Citizen. As such, Ms Markle is still quite some time away from securing ILR, let alone British Citizenship.
When it comes to extending her visa, Ms Markle will have to satisfy the eligibility for limited leave to remain as a partner, which includes the following relationship requirement:
"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".
Given the stated aim of the Duke and Duchess to spend time in the UK and North America, they will need to ensure they do not fall foul of the above rule. Unfortunately, it is not clear how an extension application will be decided given the range of factors which will be considered at the time. Additional guidiance provided by the Home Office on this matter states that if there have been 'limited' periods whereby time has been spent outside of the UK, there must be "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 a reason to doubt that the couple intends to live together permanently in the UK." If the argument is being made the couple are trying to carve out a financially independent future, as in the case of R (Chaudhry) v Home Secretary  EWHC 3887 (Admin), it may be necessary to prove that Ms Markle had looked for work in the UK before looking overseas.
If Ms Markle does apply for an extension of her leave to remain and is successful in doing so, she may still face a challenge when applying for citizenship as a spouse of a British Citizen. It is well established that to do so, the application cannot have spent more than 270 days outside of the UK in the prior three years, or 90 days in the prior year. Everything, therefore, depends on how much time Ms Markle now spends in the UK over the next few years. If her time is split equally, she will be outside of the country by twice the allowed amount.
If Ms Markle does exceed the absence threshold, then all is not necessarily lost. The Home Office may apply discretion depending on the number of days absent from the country. However, that discretion may only be used where it can be shown the person applying "established their home, employment, family and finances in the UK." If this can be satisfied, discretion may be applied favourably if "the excess absences were an unavoidable consequence of the nature of the applicant's career", among other criteria. In other words, while discretion may be applied in favour of an applicant in such a situation, it is impossible to predict the outcome.
If the Duchess does eventually apply for British Citizenship, and the current rules apply, there are many considerations which need to weighed up by the decision-maker. There is little doubt that the circumstances being assessed will be unique, and it is impossible to predict the future factors which may add to the decision being made. Much also rests on the true intentions of the royal couple, including where any children may go to school, where they set up their future business venture, and where they pay their taxes. Another factor will be whether the couple continues in their royal roles, as ultimately, if they are to be taken seriously in such a capacity, surely, they would need to ensure a strong presence in the UK. But, if it is decided that they will live the bulk of their lives away from the UK, then it is difficult to see a route to British Citizenship without considerable discretion being applied by Home Office officials. Only time will tell what happens in the end; we will keep you updated as future events unfold.
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