On 8 January 2020, the Duke and Duchess of Sussex announced that they “intend to step back as ‘senior’ members of the Royal Family“, instead planning on splitting their time between the UK and the US/Canada and focusing on achieving financial autonomy.
When Prince Harry and Meghan Markle married in 2018, they were clear that they planned to shun any favourable treatment in respect of UK visas and residence. This indicates that the Duchess is currently the holder of a 2.5-year spouse visa, working towards completion of the 5-year qualifying period for settlement as sponsored partner.
The big announcement yesterday has therefore raised some questions about the Duchess’ future residence in the UK. She and her husband no longer have the intention to ‘live together permanently in the UK’ (as is required under Immigration Rules), meaning that the Duchess may no longer satisfy the requirements to continue as a sponsored spouse when her visa comes up for renewal. If that were the view taken by UK Visas and Immigration, it would be possible for current leave to be curtailed or future applications refused.
It is worth noting, however, that absences from the UK during the validity of a spouse visa do not lead to immediate refusal. There is no strict residence requirement, and maximum absences are not limited in the way we see in other routes such as those relating to economic activity in the UK. Last year, Latitude Law assisted a couple who had spent the majority of the preceding 3 years living in China. Even though they hadn’t spent most of their time in the UK, they had travelled for business purposes – usually together – and remained committed to their home here. Their settlement application was successful; the UK’s immigration authorities satisfied that the couple genuinely intended to make the UK their permanent home in the future.
Harry and Meghan’s announcement has surprised many, but its limitations have relevance to immigration lawyers. The couple is part of one of the most famous families on Earth, and they haven’t renounced their status as Royals, but indicated that their duties and day-to-day activities will be changing. It would not be right to say that they are abandoning their home in the UK or that they have no future intention to reside here. It is likely that the Duchess’ UK status will remain secure, particularly if the UK/US split will be broadly even, or weighted in favour of the UK.
But what if things were more serious? In a world where Harry and Meghan ‘left’ the monarchy and simply moved to live on the other side of the Atlantic, it is difficult to see how Meghan’s status here could be protected. In those circumstances, it would be more likely that a future partner visa would be refused, restricting Meghan to visits in accordance with the Immigration Rules. This means limitations on both the time available to spend in the UK (6 months maximum) and a restriction on activities here.
Travel to the UK as a visitor rather than as a ‘partner’ could have severe repercussions for the couple’s intention to achieve financial independence. It is not yet clear what exactly they plan to do, but both are committed to charitable works and the Duchess has a background in showbusiness that could be utilised to maximise the reach of new ventures and the couple’s new ‘brand’. Visitors cannot ‘work’ in the UK however, so lengthy trips here would lead to restrictions on permissible activities for potentially large sections of the year. Some general activities are always permitted (eg giving talks or speeches), but there are limitations on profits that can be made. Any visitor to the UK who intends to carry out some form of economic activity and/or receive payment must be very careful.
Finally, we should consider British citizenship. In whatever capacity the Duke and Duchess now continue to reside in the UK, citizenship applications have strict residence requirements which Meghan may struggle to meet. The restriction on the number of absences that are permitted (broadly limited to 90 days per year in at least the 3 years preceding the application) may mean that a fully compliant future application will no longer be possible. However, it is worth considering that the Secretary of State can naturalise any individual as a British citizen at their discretion, so more favourable treatment for Harry and Meghan might be on the horizon after all.