What If Meghan Markle Cannot Get ILR or British Citizenship?

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Like everyone across the country, the London-based Immigration lawyers OTS Solicitors are delighted at the news that Prince Harry is engaged to American actress Meghan Markle, best known for her role in Suits and her humanitarian work. Ms Markle has announced she will become a British Citizen, and just to assure us that the same rules apply to the Royal Family as to ‘normal folk’, she will be “working towards obtaining citizenship” over the next months/years.

As she is from America, Ms Markle would not have required a visa to spend time with Prince Harry while they were dating. This is because citizens from Canada, Australia, New Zealand, parts of the Caribbean, the United States and large parts of South America can come to the UK for up to six months without a visa.

Now that Ms Markle has made moved to the UK permanently it is likely Ms Markle is in the UK on a Fiancée Visa. Once she is married, it is likely she will switch to a UK spouse visa. And, as has been pointed out in many UK papers, fortunately, Ms Markle will not need to worry about Prince Harry not being about to meet the Minimum Income Requirement of £18,600 (he is estimated to be worth around £25 million). The adequate accommodation requirement will also be unproblematic – the couple plan to reside in Nottingham Cottage, located in the grounds of Kensington Palace.

What happens next, the application for Indefinite Leave to Remain and British Citizenship can be tricky; although probably not for Ms Markle. It is likely that palace staff have looked into the bride-to-be’s background, making sure no embarrassing skeletons appear from her closet that could prevent her obtaining British Citizenship. Examples could include having a criminal record or having broken British Immigration rules in the past.

However, just for argument’s sake, let’s imagine what would happen if Ms Markel was turned down for Indefinite Leave to Remain or British Citizenship.

Applying for Indefinite Leave to Remain

If Ms Markle switches to a UK spouse visa, she will be able to apply for Indefinite Leave to Remain (ILR) after five years, provided her and Prince Harry are still married. She will need to show:

• she meets the ‘continuous residence’ requirements
• she has abided by the rules of her visa/s
• she has passed the Life in the UK test (as she would if aged between 18 and 65 years)

To meet the continuous residence requirements, Ms Markle will need evidence to prove that during her five years in Britain she has not left the country for any more than 180 days in any of the years preceding the date she applied for Indefinite Leave to Remain. Only whole days are considered by Immigration officers when counting absences.

Let’s imagine that for some reason, Ms Markle’s Indefinite Leave to Remain is denied. Unfortunately, this is the reality for hundreds of people every year who try to apply for settlement in the UK.

As the refusal of ILR would spark the right to appeal the decision on Article 8 grounds, Ms Markle would be best advised to contact an experienced Immigration solicitor straight away.

Article 8 of the European Convention of Human Rights states:

“Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home, and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

As Ms Markle will have been married to Prince Harry for five years by this point, and may have children, it is unlikely she would have difficulty establishing the aspect of private and family life. This is because family life is presumed to exist between a husband and wife, and in addition, the court will be obliged to take into account the best interests of any children involved.

The court will then need to consider whether refusing Ms Markle’s application for ILR was proportionate. For example, the court must decide whether the decision to refuse ILR was done:

• in the interests of national security, public safety, or the economic well-being of the country, or
• for the prevention of disorder or crime, or
• for the protection of health or morals, or
• for the protection of the rights and freedoms of others

Immigration appeals on Article 8 grounds are extremely complex. An experienced Immigration solicitor will ensure any visa application made to the Home Office will leave room for an Article 8 appeal to be made if the application is refused.

If her appeal is successful and ILR is granted, Prince Harry’s future bride may be able to apply for British Citizenship 12 months after gaining settlement.

Refusal of British Citizenship

Ms Markle may be successful in appealing a refusal for ILR, but that does not mean her application for British Citizenship will be immediately granted.

British Citizenship applications are routinely refused. Reasons include:

• the application is not filled in properly
• supporting documents are not included
• the applicant is not of ‘good moral character’
• the applicant does not meet the residency requirements
• the applicant fails the Life in the UK Test or English language requirements

There is no statutory right of appeal against a decision to refuse an application for British Citizenship. However, if an applicant believes that their application has been incorrectly refused, they can apply for it to be reconsidered by completing ‘Form NR’.

If the Home Office refuse to reconsider their decision to refuse Ms Markle’s application for British Citizenship, she may be able to apply for judicial review. The courts would use the judicial review process, to examine whether the decision maker has acted illegally, unreasonably or has made procedural errors in reaching the decision to refuse naturalisation.

In such circumstances the courts may:

• quash the decision (by making a quashing order), and/or;
• direct the decision-maker to reconsider the application (by making a mandatory order)

Like appeals, Immigration judicial review cases can be very complicated. It is therefore imperative that you instruct a highly experienced Immigration solicitor to manage the claim on your behalf.

In summary

Fortunately for Ms Markle, she is likely to sail through the application process for both ILR and British Citizenship. Sadly, for many applicants, the process is torturous, expensive and full of separation and heartbreak. If you are struggling to acquire a family visa, ILR or citizenship and need expert legal advice, our Immigration solicitors in London can help.

OTS Solicitors is one of the most respected Immigration law firms in London and is ranked highly in the Legal 500 for Immigration and Human Rights.

By making an appointment with one of our Immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today.

If you wish to discuss any of the points raised in this blog, please phone our London office on 0203 959 9123.