Why the location of your Nikkah matters for UK Immigration?

What is a Nikkah?

The word “Nikah” has been derived from an Arabic word ‘nikhun’ which means to bring together and to absorb. If a man and a woman are to become absorbed in each other, a basic and fundamental condition will be the mutually agreeing of both the parties to perform the nikah, which is relied upon to unite them as life partners for the rest of their lives.

They should, hence, be sure about the conditions, obligations and rights that apply to them in a marriage. In Islam marriage is a shared and lawful contract in which the two parties concur about every single part of the agreement. The willingness of both man and woman is necessary, without their assent the nikah is invalid. The nikah ought to be performed before the guests as a formal declaration. The agreement upon “Haq Mehar” is also one of the conditions of nikah and ought to be settled upon by both the parties. After the lady gives her consent, a prayer (khutba) of nikah has been performed by a religious person afterwards everyone gives best wishes to both the life partners. The measure of haq mehar settled upon ought to likewise be declared. After all the formalities, the man and woman have the privilege to begin their life together lawfully. There are some additional unwritten conditions of the nikah which are comprehended.

 

Is a Nikkah in Pakistan recognized by British Law?

Several cases have been seen regarding the issue that whether the marriage performed in overseas countries is valid in UK under the British Law or not. A lot of couples from various countries including Pakistan have asked us about the validity of their marriage in UK. Here you will find the answer to this query.

Let’s be specific, and try to answer the question, is a marriage (Nikkah) in Pakistan recognized by the British Government under British law? Before finding the answer to this specific question, another question should be answered first which is, whether the marriage is legally registered in that specific country where the marriage had been performed or not? If the answer is yes, then we will go further to our first question. Under the terms of the UK’s Foreign Marriages Act 1892, marriage (Nikkah) performed in Pakistan will be recognised by the British Law if it would be legally registered in Pakistan. The High Court (London) in 1967 also looked at this issue and decided that they would be recognised.

 

Is a Nikkah in the UK recognized by British Law?

In Sharia Law, marriage is seen as an agreement where two people consent to live as a couple as per the direction contained in the two essential sources of the Sharia, the Qu’ran and the Sunnah of the Prophet Muhammad (SAW).

In spite of the fact that Muslims trust that a nikah or marriage contract performed in the UK is substantial according to God, but it is not a legitimate marriage under British Law. The Nikkah, although valid in the Islamic sense, is certifiably not a legitimate marriage in its own privilege in the UK. It is an exclusively religious ceremony and isn’t acknowledged in the UK as a lawful function.

 

What are the immigration laws concerning marriage and spousal visas to the UK?

There are various laws and requirements which should be fulfilled before applying for the spousal visa in UK. Here are is a concise list:

  • Your age and your spouse’s age must be 18+ years.
  • You have to get married legally and according to British law.
  • You should expect to live respectively for all time.
  • You should have enough money to help yourselves and your dependents.
  • Your supporting partner must earn more than £18,600 every year or enough saving to support you. The financial requirement is higher if they also have children to be supported.
  • You should have appropriate accommodation for you, your life partner and any dependents.
  • You must also fulfil the English language requirements.

What problems arise when only an Islamic marriage is entered (and there is no civil ceremony)?

In British law, a marriage, performed as only a religious ceremony in UK, is not considered as a valid marriage. You have to fulfil all the legal requirements along with the religious ceremony. If someone only relies on religious function and considers it as a whole or doesn’t perform a civil ceremony, they face a lot of problems. First of all their marriage is not recognised legally so they can enjoy all the facilities as the married couples of UK.

Another main problem which arise when only Islamic marriage is entered and there is no civil ceremony is that if the marriage does not work, women who have just had a nikah (Islamic ceremony) can’t go to the family court to look for a division of assets, for example, the family home, property and life partner’s pension. It can also bring about some other major issues. Therefore, it is necessary to register the marriage according to British law along with religious registration. Talley and Barrow are here to help you in all these aspects.

UK Spousal Visas, Financial Requirements and Article 8 ECHR

Let’s start with the basics.  So what exactly is a spousal visa?

 

A spousal visa allows a British Citizen or “Settled Person” (that’s a non-British citizen with ILR or Permanent Residency) to bring a non-EEA spouse, partner, fiancé or civil partner to the UK for a period of more than 6 months.

 

The spouse will be considered a “dependent” as his/her right to join you is practically based on your own right to stay in the U.K and you will be the “sponsor”. [1]

 

Spousal visas are valid for 33 months, with the possibility of renewing it for an additional 2 years and 6 months.  The renewal of your spousal visa is known as FLR-M (Further leave to remain – married).

 

In order for the spousal visa to be issued and your spouse or partner to join you in the UK, you will have to meet the financial requirement of earning the minimum amount £18,600, before tax. In the case of your spouse and one child joining you, the minimum amount is £22,400 with £2,400 required on top of that of each additional child.[2]

 

This financial requirement can be met through different means:

  • Salary
  • Self-Employment
  • Pension
  • Non-salaried employment

 

Some of the additional means of securing the minimum financial requirement are, income generated through rent or share, maternity/paternity/ adoption/sick pay and cash savings which need you be at £16,000 and on your name and under your control for at least six months.[3]

 

There is no need to meet the financial requirement in case you have a benefit such as Attendance Allowance, Disability Living Allowance, Severe Displacement Allowance, Personal Independence Payment, Industrial Injuries Disablement Benefit, Bereavement Benefits, Armed Forces Independent Payment or Guaranteed Income Payment under the Armed Forces Compensation Scheme and Constant Attendance Allowance, Mobility Supplement or War Disablement Pension under the War Pensions Scheme.

 

It should be noted that the sponsor can get more than one benefit, as long as he/she can show that he/she receives enough money to support the dependent as well.[4]

In case that you don’t comply with the financial requirement and you are facing problems with reuniting your family, a solution may be possible either though Article 8 ECHR or Working Outside the Rules Applications.

 

Article 8 ECHR 

Artilce 8 of the European Convention for Human Rights stipulates that “everyone has the right to respect to his private and family life, home and correspondence” and that the public authorities are not allowed to intervene with the exercise of this right unless they are trying to protect the “interests of the national security, public safety or the economic well-being of the country, to prevent disorder or crime, to protect health and morals or the rights and freedoms of others”. [5]

 

Since British courts are not bound by the ECHR, how exactly can the citizens rely on Art. 8 when the financial requirement for the spousal visa is not fulfilled?

According to paragraph EX.1 of the Home Office Immigration Rules, Art. 8 ECHR applies upon the Immigration Rules, for the spouses who already live in the UK and hold a visa of a different category which is about to expire or who do not have a visa at all and need to apply either for a new one or for extension but are unable to fulfill the minimum financial requirement.[6]

 

In a situation where  a British citizen or “settled person” wishes for his/her spouse to get the spousal visa, he/she will have to illustrate that their family life would be affected by “insurmountable obstacles” in the case that the spouse’s or partner’s application was denied and was forced to return to their home country.[7] It must be noted that the term “insurmountable obstacles” refer to those obstacles that would be impractical to overcome rather than impossible. For instance, an insurmountable obstacle would be if a British citizen who has lived and worked in the UK for his whole life, as a result of not being able to be with his/her spouse, was forced to move instead in a place where the language barriers will make it impossible to relocate. The same argument applies also in the case that the couple has little children and moving to another county will make it impractical for them to adapt to the new standard of life and have a stable childhood.[8]

 

As soon as the existence of “insurmountable obstacles” and accordingly paragraph EX.1 have been established that apply in the case in hand, then the Right to family life as described in Article 8 ECHR takes presence, regardless of whether the financial requirement for the spousal visa is fulfilled.

 

What that means in practice is that the spouse/partner will be granted the right to remain in the UK, under the “10-year family route” which entitles them to “2,5 years” segments of leave, able to be extended in case they continue to fulfil the requirements. After the 10-year period of continuous leave is completed, the spouse/partner will most probably be eligible to apply for an indefinite leave to remain in the UK.  However, it should be noted that the final decision regarding the grant of the indefinite leave to remain depends on the discretion of the Home Office and the evidence required in each case.[9]

 

So, in case that your 10-year period is soon coming to an end, you must ensure that the legal requirements for applying for the indefinite leave are still the same and that no legal amendments have taken place that may affect your personal situation.

 

Finally, you should make sure that the documents backing your case are both correct and enough to support all the information mentioned in your application, as not doing is the most common reason for applications being declined.

 

Working Outside the Rules Applications

Another way for a defendant to be granted the spousal visa, in case that a sponsor is not able to comply with the financial requirement of the £18,600, is to request that the Home Office exercises its discretion to grant a permit to leave outside of the Immigration Rules.[10]

 

These rules, which were also mentioned in the section above, were adopted by the Secretary of State of the Home Department in 2012, in order to define the circumstances under which Art 8 ECHR, will apply. Even though, discretion is possible in some sections of the Rules, in most cases the requirements have to be met with the greatest possible detail or otherwise the application will be rejected automatically.[11]

 

In case, however, that the applicant does not fulfil any of the requirements of the Immigration rules, the Secretary of State of the Home Department has the discretion to grant permits of leave to the applicant outside of the Rules of Immigration. It should be noted though, that for this discretion to be exercised the circumstances of the case must be compelling and other issues of the case, such as the human rights of the specific individual and the other family members, should be examined carefully.[12] For instance, a British citizen who got married to a non-European citizen and have two children which are both British, has been unemployed for almost a year now and for that reason cannot sponsor his spouse’s application.

 

Since the financial condition of the British citizen constitutes a unique situation and children being raised without their mother while their father cannot take sufficient care of them, is considered a significant violation of their rights, is quite possible that an application working outside of the rules might be successful. What is important to keep in mind in this case, is that the key for your application here is to be able to prove that the circumstances of the case have a unique element and that the human rights of the whole family (or some family members) might be threatened.

 

Once again providing the necessary and correct evidence is extremely crucial and can determine the outcome of your case.

 

Finally, the applicant can request the Home Office to grant leave outside the Rules by publishing a concession.[13] That is a statement of policy or practice which explains or expands the Immigration Rules but never limits them. Concessions are made ad hoc as a response to a legal issue arisen or due to a difficulty related to an Immigration Rule in force. Even though requesting a grant this way still constitutes one of the possibilities and you should be aware of it, at the same time the reality is that concessions have been reduced significantly these past few years and only a few of them remain valid.[14]

Thus, while there is a financial requirement in order for the spousal visa to be issued, you should not be discouraged if you cannot fulfil it. The three options described above aim to assist you to be granted leave, according to your personal circumstances, insomuch as you have valid claims which you can support by providing the necessary evidence.

[1] Citizens advice, ‘Getting a visa for your spouse or partner to live in the UK’ (Citizens Advice, 2018)<https://www.citizensadvice.org.uk/immigration/visas-family-and-friends/getting-a-visa-for-your-spouse-or-partner-to-live-in-the-uk/> accessed 29 April 2018.

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] European convention of human rights, ‘Wwwechrcoeint’ (European Convention of Human Rights, 2018)<https://www.echr.coe.int/Documents/Convention_ENG.pdf> accessed 29 April 2018.

 

[6] Gov.uk, ‘Immigration Rules’ (Gov.UK, 6 April 2018) <https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-fm-family-members> accessed 29 April 2018

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Lexis Library, ‘Outside the Immigration Rules and human rights applications—overview’ (Lexis Library, 2018)<https://www.lexisnexis.com/uk/lexispsl/immigration/document/393826/55KG-8PB1-F18H-6241-00000-00/Outside-the-Immigration-Rules-and-human-rights-applications—overview> accessed 29 April 2018.

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Ibid.

A Royal Wedding: Meghan Markle’s possible visa violation and her U.K. immigration options

As we share in the celebrations for the forthcoming Royal Wedding, here at Talley & Barrow, LLP Immigration Advisors, we’ve cast a professional eye over Meghan Markle’s immigration options, and why we think she may have already violated the terms of her visa.

 

Meghan Markle’s Canadian residency: will it make a difference to her U.K. immigration options?

 

For the past seven years, Meghan Markle has made Toronto, Canada her home; which is not entirely surprising as her legal drama series, ‘Suits’, is filmed in that country. A non-Canadian individual who resides in Canada for at least five years may apply for permanent residency there. Whether Ms. Markle did in fact apply and was granted a permanent residency remains unknown.

 

As Canada is a Commonwealth country, under Schedule 3 of the British Nationality Act 1981, all Canadian citizens are Commonwealth citizens (as is the case for the other 51 Commonwealth countries). If Ms. Markle had been granted a permanent residency she would have then been able to apply for Canadian citizenship and consequently become a Commonwealth citizen.

 

The U.K. boasts special immigration options for Commonwealth citizens:

 

Right of abode in the U.K. – a right of abode allows any Commonwealth citizen to freely enter and live in the U.K. without any immigration restrictions either because of their parents or because they are or were married to someone with right of abode.

 

  • Parents – one of the parents of a Commonwealth citizen was born in the U.K. and a citizen of the U.K. and colonies when the Commonwealth citizen was born; the individual became a Commonwealth citizen on 31st December 1982; and the individual did not stop becoming a Commonwealth citizen at any point after 31st December 1982[i].
  • Marriage – a female Commonwealth citizen can get a right of abode through marriage, in which she must have married an individual with right of abode before 1st January 1983, and not have stopped being a Commonwealth citizen at any point after 31st December 1982[ii].

 

U.K. Ancestry visa – a Commonwealth citizen can to come the U.K. for up to five years, with the possibility to settle permanently in the U.K. after five years, if they can show that at least one of their grandparents was born in the U.K.[iii]”. The Commonwealth citizen must be aged 17 or over, be able and intend to work in the U.K., and support themselves and their dependents without help from public funds[iv].

 

How does this apply to Meghan Markle? Without any debate, Meghan Markle will not be eligible for either of the additional immigration options, even if she had a permanent residency in Canada. It is believed that neither of her parents were born in the U.K. Her mother is of African-American descent and her father has Dutch-Irish ancestors and she is therefore unable to claim right of abode through her parents. Demonstrably claiming right of abode through marriage is impossible. Despite her alleged British roots (in which her great-great grandmother was “born in England”) Ms. Markle still does not meet the eligibility requirement under the U.K. Ancestry visa.

Photo courtesy @kensingtonroyal – Instagram

Can Meghan Markle qualify for a Tier 1 Visa?

 

The Tier 1 visas are for non- European Economic Area “entrepreneurs and investors with significant business funds available to set up or invest in a U.K. business, university graduates with a business plan which has been endorsed by an appropriate organisation, and the very few people who are internationally recognised as an exceptional talent in their field”[v].

 

  • Tier 1 (Entrepreneur) visa – for individuals who want to set up or take over a business in the U.K., with at least £50,000 investment funds. In practice without funds of at least £200,000 many individuals will find it difficult to apply for this visa[vi]. An individual is permitted to come to the U.K. for a maximum of three years and four months. During this initial three year period, they will be required to establish a business in the U.K., invest the full £50,000 or £200,000 and create a least two full time jobs for workers settled and presently residing in the U.K. for at least 12 months[vii]. An extension of a further two years is allowed and, after a total period of five years in the U.K., the individual may be able to apply for indefinite leave to remain[viii].

 

  • Tier 1 (Investor) visa – for high net individuals who will make a substantial financial investment in the U.K. A significant investment of a minimum of £2 million is required. The individual must show that they are holding funds of £2 million or above, under their own unrestricted control and in a regulated financial institution. If the individual is not holding funds in pounds sterling, the funds must be convertible to £2 million or above. An investment can only be made in “U.K. government bonds, share capital or loan capital in active and trading U.K. registered companies”[ix]. With this visa an individual can stay in the U.K. for a maximum of three years and four months and an extension of an additional of two years is allowed if the individual meets the further requirements. By increasing the amount of the investment, “the route to permanent residency can be accelerated”[x]. An investment of £5 million or more will earn the individual permanent residency after three years and an investment of £10 million or more will earn the individual permanent residency after two years[xi].

 

 

  • Tier 1 (Exceptional Talent) visa – this route is for “exceptionally talented individuals in the fields of science, humanities, engineering, the arts and technology, who wish to work in the U.K. These individuals are those who are already internationally recognised at the highest level as world leaders in their particular field, or who have demonstrated exceptional promise and are likely to become world leaders or globally recognised in their field of expertise”[xii]. An endorsement is required from either of the following: Tech City U.K., Arts Council England, The British Academy, The Royal Society and The Royal Academy of Engineering[xiii]. This visa is “subject to a limit of 1,000 endorsements in total per year”[xiv]. The individual must go through a two-stage application process; the first stage being the application for the endorsement, and the second stage being the visa application itself. Permanent residency in the U.K. may be applied for after a period of five years.

 

  • Tier 1 (Graduate Entrepreneur) visa – for graduates who have been officially “endorsed as having a genuine and credible business idea”[xv]. An endorsement is required from either the Department for International Trade (DIT) as part of the elite global graduate entrepreneur programme or a U.K. higher education institution if it is an authorised endorsing body[xvi]. The time period for both endorsements are different, a graduate should get a decision on their visa under a DIT endorsement within 3 weeks, whereas under the U.K. higher education institution a graduate can expect to wait within eight weeks to receive a decision. Under this visa, a graduate is permitted to stay in the U.K. for up to one year, and thereafter may apply for an extension for a further year only.

 

How does this apply to Meghan Markle? From the above, both the Tier 1 (Entrepreneur) visa and Tier 1 (Investor) visa seem to be within the Ms Markle’s reach in gaining entrance to the U.K.

 

In terms of the Tier 1 (Investor) visa,  our future Royal is believed to have made more than $50,000 per episode on Suits, with her annual salary being around $450,000, which includes around $80,000 worth of annual sponsorship and endorsements income. It is further believed that Ms. Markle was paid $187,000 and $171,429 for appearing in two films both released in 2010. Her overall net worth is $5 million[xvii]. Based on this, assuming that she opens a U.K. bank account, it will not be difficult for the future Princess to deposit at least £2 million in a regulated financial institution. It is not a necessary requirement that the money has to be physically in the U.K. when she submits her application, the money may be held overseas.[xviii]

 

It also seems Meghan Markle has an entrepreneurial flair, since away from the camera “she is a fashion designer and the founder of a lifestyle website and brand called ‘The Tig’”[xix]. Finances will not be a problem, but as long as Ms. Markle can produce a well thought-out business plan which will survive intense scrutiny from the Home Office, she will be good to go. Or,  more accurately, to stay.

HRH Prince Harry and Meghan Markle
Photo courtesy @kensingtonroyal – Instagram

Can Meghan Markle qualify for a Tier 2 Visa?

 

The Tier 2 visa is the route for non-European Economic Area individuals who wish to work in the U.K. A company or organisation that holds a Tier 2 licence must sponsor these individuals. “A licence is a permission given to a company or organisation to sponsor workers in its business”[xx].

 

When sponsoring a foreign worker for a role in the U.K. under the Tier 2 category, the employer must show that they have ‘tested’ the U.K. labour market in finding a suitable worker who is already settled and present in the U.K., otherwise known as the Resident Labour Market Test. The test obliges an employer to advertise a job vacancy to settled workers for 28 days before extending the job opening to migrant workers.

 

The Tier 2 visa consists of various categories:

 

  • Tier 2 (General) – for skilled foreign workers who have a job offer by a U.K. employer. The foreign worker will be required to have a certificate of sponsorship from a U.K. employer. The visa permits the foreign worker to stay in the U.K. for five years and 14 months, after which permanent residency may be applied for.

 

  • Tier 2 (Intra-Company Transfer) – for foreign workers working for multinational companies who are going to be transferred to a U.K. branch. The foreign worker will be required to have a certificate of sponsorship. This visa is split into three categories: long-term staff (this visa is for transfers of more than 12 months); short-term staff (this visa is for transfers up to and including 12 months); and graduate trainee (this visa is for transfers into graduate trainee programmes for specialist roles). The length of stay in the U.K. is different for each visa type. Long-term staff that earn less than £120,000 are permitted to stay in the U.K. for five years and one month, whereas those earning over £120,000 are permitted a nine year stay. Short-term staff and graduate trainees both have a 12-month permitted stay. The foreign worker can either stay up to the permitted time period stated above or else for that time which is specified in the certificate of sponsorship, whichever is the shorter[xxi].

 

  • Tier 2 (Minister of Religion) – for individuals who have been offered a job in the faith community. The foreign individual will be required to have a certificate of sponsorship. The individual can come to the U.K. with this visa for a maximum of up to three years and one month, or the time specified on the certificate of sponsorship, whichever is the shorter[xxii].

 

  • Tier 2 (Sportsperson) – for internationally recognised sports people and coaches. A certificate of sponsorship is also required. The individual can stay in the U.K. for up to three years, and then apply for an extension of another three years up to a maximum stay of six years[xxiii].

 

How does this apply to Meghan Markle? When Meghan Markle marries Prince Harry, against common belief, she will not become a Princess in her own right, but the Princess Henry of Wales and more commonly the Duchess of Sussex. Being a Princess is a ‘job’. On Princess Charlotte’s birth certificate, which went viral over the internet, we noted that Kate Middleton stated her occupation as the ‘Princess of England and Wales’.

 

It is thus likely that Meghan Markle will be able to qualify under a Tier 2 visa, as she will be entering the U.K. to work. In order for the Royal family to carry out their Royal duties, the Royal family is issued a Sovereign Grant which are funds from the U.K. taxpayer given over to the Queen in order for the Royal family to fund their official duties[xxiv].

 

Based on the requirements of the Tier 2 visa, Prince Harry should have performed a Resident Labour Market Test and searched for a suitable individual to perform the role of a Princess within the U.K. before extending his search overseas. Prince Harry would have been required to advertise the role for a period of 28 days on an approved recruitment platform with a detailed description of the role. Any individual with suitable skills who had applied for the role must be interviewed by the Prince, and if such an individual was not found, Prince Harry would have been allowed to extend his search overseas.

Photo courtesy @kensingtonroyal – Instagram

Was Meghan Markle ‘working illegally’ by carrying out a Royal engagement?

 

After the news of the engagement of Prince Harry and Meghan Markle broke worldwide, the couple carried out their first official public engagement, in Nottingham.

 

Now, without evidence of the type of visa used by Meghan Markle in order to enter the U.K., we must assume that “she does not currently have any type of leave in the U.K. beyond the Standard Visit visa granted to her on arrival at a U.K. airport. A Standard Visit visa can be issued to American citizens without applying at an embassy for permission to do so”[xxv].

 

Under the Standard Visitor visa in the U.K. (which permits a foreigner to visit the U.K. for leisure, for business or for another reason) individuals are not permitted to conduct paid or unpaid work. However, under Immigration Rules Appendix V, 5A, are listed certain allowed business activities, such as attending meetings, conferences, seminars and interviews, giving one-off or short talks and speeches for non-commercial events, attending trade fairs and negotiating and signing deals and contracts.

 

How does this apply to Meghan Markle? The future Princess has undertaken her “first official Royal engagement”[xxvi] in Nottingham: a Royal walkabout. She was seen “meeting the crowds in Nottingham with Prince Harry”[xxvii] and then attending the “Worlds Aid Day charity before heading off to the Nottingham Academy”[xxviii]. As this was Ms. Markle’s first role in her future career which does not come under the permitted business activities under the Immigration Rules Appendix V, 54, it seems that she was working illegally.  However, it is extremely unlikely that a breach of the conditions of the visa will cause an adverse effect on Ms Markle’s immigration record. So, Ms. Markle, you are safe!

 

The advantages of coming to the U.K. on a Fiancée Visa in comparison to a Spousal Visa?

 

The Fiancée visa enables an individual “who has ‘settled status’ in the U.K. to bring their fiancé to join them in the U.K. Settled status means that the individual is ordinarily from the U.K. and has no immigration restrictions on the length of their stay”[xxix]. This visa is also referred to as the “prospective marriage visa”[xxx].

 

The Spousal visa, also referred to as the ‘marriage visa’, “allows married partners of U.K. citizens to immigrate to the U.K. because they are married to an individual who has settled status in the U.K.”[xxxi].

 

Whilst both visas are quite similar in terms of the requirements, there are some practical advantages of coming into the U.K. on a Fiancée instead of a Spousal visa.

 

Time period for getting married – under a spousal visa both partners must be married before they can apply for the visa, whereas, under the fiancé visa a serious intention of getting married within 6 months in the U.K. is required. For some couples who are eager to settle in the U.K. may feel the need to ‘rush’ their wedding but under a Fiancée visa some time to prepare the wedding is given.

 

Easier marriage – “getting married in the U.K. is often easier and less bureaucratic than abroad”[xxxii]. British citizens who get married abroad “need more paperwork (non-visa related, such as, a legalized birth certificate) to get married in another country than foreign nationals getting married in the U.K.”[xxxiii].

 

U.K. issued marriage certificate – a very significant advantage is the “U.K. issued marriage certificate in the English language. If the couple once married are planning their future life together mostly in the U.K., their life may be much easier with the U.K. marriage certificate when dealing with organisations, such as, the NHS and the banks[xxxiv].

 

Separate ways – as a newlywed couple, separating and living in another country from your partner may seem like a nightmare for many. The Spousal visa requires both partners to get married then go your separate ways and live in a different country to your spouse when the foreign spouse applies for the visa[xxxv]. Under the Fiancée visa this is not required.

 

Easier application process for when applying for the spousal visa – when applying for a Spousal visa, as part of the application process, the foreign spouse will be required to answer questions about their British spouse, such as their finances and employment. If the British spouse is in the U.K. when the foreign spouse is completing the form, there may arise some difficulties in completing the questions which are about the British spouse. Under the Fiancée visa, this is not a problem as both partners are very likely to be in the U.K. together, and therefore the questions about the British spouse can be answered swiftly.

HRH Prince Harry and Meghan Markle
Photo: By Mark Cuthbert/Getty Images.

Legally, could the Home Secretary give Meghan Markle a visa or citizenship without going through the usual steps?

No, the Home Secretary of the United Kingdom is not allowed to give Ms. Markle a visa or citizenship without her going through the steps required of any non-EEA national to complete. More specifically, in the case of the citizenship, the Home Office will consider the naturalization of a foreigner only in the case that a set of statutory requirements has been fulfilled and Ms. Markle cannot constitute an exception to this rule.  The only thing that the Home Secretary is allowed to do in order to facilitate the naturalization process, is to permit for some of the requirements not to be fully satisfied. For example, in order for a U.S. citizen to qualify for the British nationality, he or she must fulfil the criteria laid down in Section Six of the British Nationality Act 1981.

 

Namely the applicant must be older than 18 years old; of sound mind; able to communicate effectively in English; of good character; have a good knowledge of the life in the U.K. and have lived, in case she is married to a British citizen, in the U.K. for a minimum of three years, before applying, or for a minimum of five years in case of no marriage or civil partnership. As is understandable from the time restraints in the British Nationality Act, there is no way that Ms. Markle may be granted the British nationality before her marriage to Prince Harry next May and before being a U.K. resident for three years after that. However, Ms. Markle will not be required to prove that she is able to communicate in English effectively since she is a U.S. citizen and thus automatically exempted from this requirement.

 

In addition, she may also not have to prove that she is of sound mind and good character because these requirements can also be certified through her public lifestyle. Furthermore, regarding the visa, the Home Secretary does not have to skip the usual steps, as Ms. Markle is entitled to apply for entry clearance as a fiancée. This is valid for six months and will allow her to remain in the U.K. after the marriage as the spouse of a British national. Or she may obtain a special visitor visa for marriage which is also valid for six months and will allow her to move to the U.K. if, following the marriage, an entry clearance application as the spouse of a British national is approved by the U.S. authorities. We’ve seen there are plenty of alternatives for Ms. Markle to obtain a visa or citizenship. There is no need – legally speaking – for the Home Secretary to offer her different treatment from any other citizen seeking the same thing.

 

Legally, could the Queen give Ms. Markle a visa or citizenship? Or could she request this of the British parliament?

 

Legally one of the powers of the Queen is to “control passports”. That is, the issuing and withdrawal of the British passport fall within the Royal Prerogative and all British passports are issued in the Queen’s name. Even though theoretically this power allows the Queen to grant British citizenship to whomever she wants, in practice she will not act in such a way. Instead the Ministers of the Crown (in this case the Home Secretary) will exercise the power of controlling passports on her behalf, applying the requirements laid down in the relevant Acts that regulate the area.

Regarding the second scale of the question, of whether the Queen can request from the Parliament to grant Ms. Markle a visa or citizenship, theoretically speaking she can do so by exercising her political right to create secondary legislation. More specifically, the Queen when it comes to issues related to the Crown, has the power to create either Orders in Council and Letters Patent. While the first type of these legislature instruments is mainly used by the Ministers, the second one seems quite appropriate to be used in the case of a royal wedding. However, we should keep in mind that the Queen’s powers, including the political ones as these, have been ceremonial for many years now and most of them are being used either by the Prime Minister or the Cabinet Ministers on her behalf. In addition, the fact the United Kingdom has attracted a significant pool of immigrants from non-EEA countries struggling to extend their rights to become permanent residents or obtain the British citizenship, may discourage, the usually politically neutral Queen, to issue a Letter Patent that may imply a type of discrimination originating by the Head of State and potentially cause a constitutional crisis.

Meghan Markle & HRH Prince Harry
Photo courtesy @kensingtonroyal – Instagram

Could an Act of Parliament give Ms. Markle a visa or citizenship?

 

The purpose of an Act of Parliament is to either to create a new law or to change an existing one. These Acts, as the word itself indicates, are the product of the Parliament which consists of the Queen, the House of Commons and the House of Lords. Each Parliament is free to vote on any type of Act that wishes without being bound by the previous Parliaments and without binding the future ones. So, in the case of Ms. Markle, the Parliament, based on its supremacy has theoretically the power to create an Act that will grant her a visa or a citizenship. Given the political consequences that such an Act most probably will cause, the Parliament has to introduce it in a way that will change the existing immigration law and will apply to the all non-EEA immigrants wishing to get a visa or the British citizenship as Ms. Markle. The most practical way of such an Act to be realized, is through the introduction of a Public Bill which constitutes the most common type of Bill and applied to the general population rather than to specific individuals.

As in the case of the Queen, the Parliament even though it is legally permitted to pass an Act that will favour and promote just Ms. Markle’s immigration issue, the potential political and social consequences would likely prevent such a Bill from being introduced. Even if it were, it’s unlikely that it would actually become an Act of Parliament since this would set a precedent for ‘discriminatory treatment’ of the Royal family and could lead to a constitutional crisis.

 

How long might it take Ms. Markle to achieve citizenship if she follows the normal procedure?

 

As we’ve seen, Ms. Markle will have to marry Prince Harry first in order that she may apply for British citizenship under the normal procedure. Following the marriage, Ms. Markle will be able to continue residing in the U.K. as the spouse of a British national for at least three years before she need apply for British citizenship. It should be noted that, even though Ms. Markle may be exempted from some of the application requirements, she will still have to sit the test that will measure her knowledge of  ‘life in the United Kingdom’. Moreover, after the application has been submitted, it will take approximately three months for it to be processed and for a response to be issued. Thus, in order to achieve citizenship, Ms. Markle may well have to wait for at least three years.

Prince Harry and Ms. Meghan Markle arrive in Nottingham for their first official visit together since announcing their engagement.
Prince Harry and Ms. Meghan Markle in Nottingham
Photo courtesy @kensingtonroyal – Instagram

Will Ms. Markle have to give up her American citizenship?

No, according to both the U.K. and the U.S. legal systems, Ms. Markle will be able to keep her American citizenship in addition to the British one. More specifically, the U.K. allows its citizens to have dual citizenship, by enabling them to keep their other nationalities in addition to the British one. The sane rule exactly is applicable in the U.S. So Ms. Markle’s issue of retaining both nationalities is covered and permitted by both legal systems.

 

Do you need a U.K. Visa? Talley & Barrow specialise in all aspects U.K. visas and immigration with a strong emphasis on Spousal visas. Call today for your free consultation  +44 (0)2078594274 or email [email protected].

Works Cited

[i] ‘Prove you have right of abode in the UK’, < https://www.gov.uk/right-of-abode/commonwealth-citizens>, accessed: 10th December 2017

[ii] ibid

[iii] ‘U.K. Ancestry visa’, < https://www.gov.uk/ancestry-visa>, accessed: 10th December 2017

[iv] ibid

[v] Work Permit, ‘Tier 1 Visa for Business People, Investors and those with Exceptional Talent’, Tier 1 Visa Overview, <http://workpermit.com/immigration/united-kingdom/tier-1-visa-business-people-investors-and-those-exceptional-talent>, accessed: 10th December 2017

[vi] ibid

[vii] Liz Cody, ‘Guide to U.K. Business Visas for Non-EEA Citizens’, (26th March 2017, Lexology), < https://www.lexology.com/library/detail.aspx?g=1e62b35a-98c0-4d5f-8f1c-fafee48c65e5>, accessed: 10th December 2018

[viii] ibid

[ix] Tier 1 (Investor) visa, < https://www.gov.uk/tier-1-investor>, accessed: 10th December 2017

[x] Independent Financial Solutions, ‘Tier 1 Investor visa qualifying criteria’, < http://ifsnet.co.uk/193-2/service-proposition/investment-services/qualifying-investment-criteria/>, accessed: 10th December 2017

[xi] ibid

[xii] Nicolas Rollason, ‘Immigration update – Expansion of the Tier 1 (Exceptional Talent) immigration visa category, (16th November 2017), <https://www.kingsleynapley.co.uk/insights/news/immigration-update-expansion-of-the-tier-1-exceptional-talent-immigration-visa-category>, accessed: 11th September 2017

[xiii] U.K. Visas & Immigration, ‘Tier 1 (Exceptional Talent) of the Points Based System Policy Guidance, page 9, < https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/662121/T1__ET__Guidance_11_2017.pdf>, accessed: 11th September 2017

[xiv] ibid

[xv] Tier 1 (Graduate Entrepreneur) visa, Overview, < https://www.gov.uk/tier-1-graduate-entrepreneur-visa>, accessed: 10th December 2017

[xvi] ibid

[xvii]Sam Dangermond, ‘How Much Is Meghan Markle’s Net Worth?’, (Town&Country, 27th November 2017), <http://www.townandcountrymag.com/society/money-and-power/a13085480/meghan-markle-net-worth/>, accessed: 10th September 2017

[xviii] Carine Elliott, ‘Tier 1 Investor Visa quickest route to settlement in the U.K.’, (17th September 2015, <https://www.lexology.com/library/detail.aspx?g=e85f0e2c-2fcc-4517-ac11-7f39e4a998f3>, accessed: 10th December 2017

[xix] Alison Millington, ‘The incredible life of actress, entrepreneur, and women’s rights activitst Meghan Markle’, (25th September 2017), < http://uk.businessinsider.com/life-of-prince-harry-girlfriend-meghan-markle-2017-5>, accessed: 12th September 2017

[xx] ICL Legal, Guide on how to apply for a Tier 2 or 5 sponsor licence and how to sponsor a migrant worker’ (6th June 2017), < http://sponsor-license.icslegal.com/guide-on-how-to-apply-for-a-tier-2-or-5-sponsor-licence-and-how-to-sponsor-a-migrant-worker/> , accessed: 10th September 2017

[xxi] ‘Tier 2 (Intra-Company Transfer) visa, < https://www.gov.uk/tier-2-intracompany-transfer-worker-visa>, accessed: 10th December 2017

[xxii] ‘Tier 2 (Minister of Religion) visa’, < https://www.gov.uk/tier-2-minister-of-religion-visa>, accessed: 10th December 2017

[xxiii] ‘Tier 2 (Sportsperson) visa, < https://www.gov.uk/tier-2-sportsperson-worker-visa>, accessed: 10th December 2017

[xxiv] ‘How much does the Royal family cost’, <http://home.bt.com/lifestyle/money/mortgages-bills/how-much-does-the-royal-family-cost-11363982445194>, accessed: 10th December 2017

[xxv] ‘Meghan Markle and the Immigration Rules on Marriage’, <https://www.freemovement.org.uk/meghan-markle-visa-immigration-rules/>, accessed: 10th December 2017

[xxvi] Hannah Furness, ‘Hi, I’m Meghan” Ms. Markle introduces herself on first royal outing with Prince Harry’, (The Telegraph, 1st December 2017), < http://www.telegraph.co.uk/news/2017/12/01/prince-harry-meghan-markle-make-first-official-visit-nottingham/>, accessed: 10th December 2017

[xxvii] ibid

[xxviii] Laura, Hammond, ‘Relive affectionate Prince Harry and Meghan Markle’s first official engagement together in Nottingham, (Nottingham Post, 2nd December 2017), <http://www.nottinghampost.com/news/harry-meghan-markle-nottingham-visit-859168>, accessed: 10th December 2017

[xxix] ‘U.K. Fiance Visa’, <http://www.visalogic.net/uk/uk-fiance-visa/4/25, accessed>: 10th December 2017

[xxx] ibid

[xxxi] ‘U.K. Spouse Visas’, <http://www.visalogic.net/uk/uk-spouse-visa/4/103>, accessed: 10th December 2017

[xxxii] ‘Spouse v Fiancee – which visa type to choose?’, < http://www.1st4immigration.com/spouse-v-fiancee.php>, accessed: 10th December 2017

[xxxiii] ibid

[xxxiv] ibid

[xxxv] ‘Fiance visa vs. Spouse visa’, <http://www.british-filipino.com/index.php?threads/fiance-visa-vs-spouse-visa.10349/>, accessed: 10th December 2017

Spousal & Fiancé Visas for the UK

If your partner or spouse has a long-term visa or residence in the UK you may be able to apply to join them as a dependent on a Family Visa for a spouse or partner.  A visa is needed if you are planning to live with a family member for more than six months. If you are already in the UK you may be able to apply to extend your visa.

 

However, if you have a visitor visa of less than six months you will not be able to apply for a family visa from within the UK. If your partner, fiancé or spouse is a student or temporary worker, you will not be able to gain a family visa.

 

The Family Visa process has stringent criteria. There are lots of reasons why you may qualify but a number of incidences where you might not. Family visas are something which need to be investigated fully for your individual circumstances.

 

The UK government publishes the criteria and process here https://www.gov.uk/uk-family-visa

 

Refusal of family visas does happen and can lead to difficult choices for families and relationships. We look at a few scenarios in this article.

 

Spousal visa difficulties experienced by couples

 

Currently partner visa applications are falling, from 46,906 in June 2006 to 27,345 in June 2015, when 66% of applications were granted favorably.

 

Case 1: David Kiff of the UK, and Wanwan Qiao of China

 

Wanwan lived in the UK for three years, initially on a student visa, and met David in April 2016. For a visa to be granted to a non-EU spouse any couple needs to be earning a combined income of £18,600, or be facing significant difficulties to live outside the UK. Their first application was denied as David was self-employed and could not properly demonstrate his income. The Home Office stated they were declining their second application based on immigration rules, and saw no reason why the couple cannot live in China. Wanwan is heavily pregnant, but has been granted exceptional leave to remain with an extension for four months, and can re-apply after she has given birth.

 

Their full story can be found here: http://www.bbc.com/news/uk-england-beds-bucks-herts-41012762

 

Case 2: Toni Stew of the UK and Mohamed El Faramawi of Egypt

 

Again, this couple’s issues began with them not earning the combined £18,600 per year requirements. They met in Egypt in 2009 and married six years later. They have a 17-month-old son Ali who lives with mum Toni in the UK. As Toni doesn’t earn the income threshold requirement, Mohamed is not allowed to come to the UK, and has only seen his son a handful of times. Toni works part-time while caring for her son.

 

Thousands of couples are said to be affected by the minimum income requirement introduced in July 2012.

 

Case 3: Lauren Segan of the UK and American, Spencer Russ

 

Both students, Laura and Spencer have been married for less than a year. Laura is still studying and feels it’s unfair of the UK government to expect her to earn the £18,600 threshold, whilst studying, in order to bring Spencer back to the UK. They met when they were both teaching English in Russia.

 

Both couple’s stories and more can be found here: http://www.bbc.com/news/uk-35552289

 

What exactly was the change in law for income requirements for couples?

 

Under the family migration policy British citizens, foreign nationals who are settled in the UK and those with refugee status can apply to sponsor their partner’s visa. They must also show they have sufficient funding to support them. The minimum income requirement was introduced in July 2012.  For a non-European partner and child, the amount is £22,400 with an additional £2,400 for each additional child. Applicants who receive the status of “family of a settled person” cannot claim benefits or public funds.

 

The minimum income requirement policy was challenged in the High Court in 2013 and the Court of Appeal in 2014 as being discriminatory, and not compliant with Article 8 of the Human Rights Act. Article 8 is the right to a private and family life. The Supreme Court ruled the immigration policy lawful, but it continues to separate and cause pain to many couple and families.

 

What is the “Surinder Singh” route?

 

Some applicants who were unable to meet the income threshold have taken the “Surinder Singh” route to bypass the law. They work in another nation in the European Economic Area for three months or more. When they return to the UK they are treated as an EEA citizen, instead of a British citizen. This means they can bring their spouse to the EEA country, then on to the UK without having to meet the income threshold. The Home Office must be satisfied that any applicant following this route did not do so just for immigration purposes.

 

Why is the American show “90-day Fiancé” so popular?!

 

The American TV show “90-day Fiancé” and its spin-offs follow the stories of American citizens moving abroad to be with partners, often that they have recently met online. Or American’s who bring their partners to the USA. These relationships often result in quick marriages, which some see as a route to immigration or monetary gain, and not real love stories. For some the stories are true romance and show individuals adapting to new countries and relationships. For other participants in the show there are obvious issues, visible one-sidedness, or a need for love or gain not shared by the spouse to be.

 

Lastly, can simple mistakes on visa applications cause problems for couples?

 

Yes! Simple errors on any visa and immigration application can cause huge problems, even the rejection of the visa itself. It’s vital that anyone completing an application is 100% confident they meet the requirements and criteria and can demonstrate this. Submitting an incomplete or incorrect application will almost certainly cause problems. Any attempt to hide details or submit fraudulent applications is likely to cause both immediate and future refusals. If you are not sure about any part of a visa application – take advice, it may seem expensive, but is likely to save money and heartache later.