The international media is of course perennially fascinated by anything to do with the British royal family and there has recently been a lot of discussion about Meghan’s and Prince Harry’s decision to “balance” their time between the UK and Canada.
There is a lot of no doubt exciting stuff attached to this issue but immigration lawyers, being fairly boring, have tended to focus their attention on how this is likely to affect Meghan’s chances of becoming a British citizen, and we are no exception.
We might assume that Harry is a British citizen and we might similarly assume that Meghan (who is of course an American citizen) holds a visa as the spouse of a British citizen, and people have also tended to assume that she ultimately intends to acquire British citizenship.
If this is indeed the case then the decision to partly relocate outside the UK will cause issues and potential problems. It also gives us an opportunity to give some advice about some difficult areas of immigration and nationality law to those who spend a lot of time outside the UK.
There are two distinct areas here: (1) the requirements for indefinite leave to remain (settlement) and (2) the requirements for British naturalisation. These are two different subjects, and technically-minded readers – of whom we are sure there are many – will be interested to know that they stem from two different legal sources: in the first place the Immigration Rules and in the second place various Acts of Parliament, in particular the British Nationality Act 1981.
These two different origins might perhaps explain the interesting fact that these two legal vehicles are somewhat out of sync with each other. For both settlement and naturalisation there are limits about how much time applicants can spend outside the UK, but the requirements are different and differently expressed.
The Immigration Rules as they relate to spouse visas, settlement and days outside the UK constitute a masterpiece of vagueness. To qualify for settlement you must have spent five years “in the UK” with your British partner. Er… does this mean every day, 365 days per year, for five years? Surely not.
We are fortified by our knowledge of the settlement Immigration Rules in other categories that you are never required to be here literally every day of the year. Even the Home Office understands that they have to allow people to escape abroad from the allegedly dreadful British weather now and again. And indeed in many visa categories this is mathematically defined – and quite generous. You can be outside the UK for up to 180 days per 12 months, which is very nearly half the time.
But there is no such stated mathematical rule for spouse visas (and why not, we would like to ask – it would certainly make things somewhat clearer). Faced with this uncertainty our advice is (a) you should organise your life so that the UK remains your main home and (b) you should spend more than half your time in the UK and (c) as much more than half your time as you can possibly manage.
Does this admittedly rather vague advice have any legal backing from anywhere? Well, maybe a bit. Relevant Home Office published policy guidance contains the dreaded words:
“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.”
Policy guidance does not have the same legal force as the Immigration Rules but it does indicate Home Office thinking and also indicates that if you have spent more than half your time outside you will come under special investigation, which does not sound promising. So the advice may be reasonably good.
Anyway, moving on, the bad news is that the rules for British naturalisation and days outside the UK are generally stricter than those for settlement (although they are also rather vague and fairly complex). This opens up the real possibility that an applicant might have been deemed to have met the requirements for settlement but will fail to meet the requirements for naturalisation.
The basic principle for naturalisation for an applicant married to a British citizen is that they should not have spent more than about 300 days outside the UK in the last three years unless they have a strong reason that enables them to take advantage of extra discretionary policies.
So somebody who has spent say 120 days per year outside the UK might succeed in their application for settlement (although we cannot guarantee it) but they might well fail in their application for naturalisation.
If you are interested in settlement and/or British naturalisation but spend, or intend to spend, long periods outside the UK it is often a good idea to get competent legal advice at an early stage. If you leave things too long you may get caught out.