Meghan Markle Vs British Immigration: What She Has To Do To Marry Harry

Prince Harry Meghan Markle
Britain's Prince Harry poses with Meghan Markle in the Sunken Garden of Kensington Palace, London, Britain, November 27, 2017 Toby Melville/Reuters

This piece was originally published on the Free Movement website.

Hearty congratulations from all of us at Free Movement to the former army officer and U.N. charity worker who are due to marry next year. But given that Meghan Markle is an American citizen, what hoops will the happy couple need to jump through in order to complete their nuptials?

You might think that because Ms Markle is marrying a British citizen—and a very British citizen at that—immigration law has no particular role to play. You would be wrong. As what the Home Office would call a "non-EEA national," she must apply for a visa to enter the U.K. and marry Prince Harry.

Essentially she has two options under the U.K. Immigration Rules. She can enter as a marriage visitor or as a fiancée.

Marriage visit visa: get hitched and get out

Without any evidence to the contrary we will assume that Meghan Markle does not currently have any type of leave in the U.K. beyond a visit visa granted to her on arrival at a U.K. airport. A regular visit visa can be issued to American citizens like Ms Markle without her applying at an embassy for permission to do so.

Not so if she is entering to wed the prince. If she enters with the intention of marrying or giving notice to marry she will do by virtue of an old friend to immigration lawyers: Appendix V of the Immigration Rules. She must get a visa issued under Appendix V before entering the U.K. The rules for this visa are:

V 6.1 An applicant for a marriage or civil partnership visit visa must satisfy the decision maker that they meet the requirements at V 4.2 – V 4.10 and must be aged 18 or over.
V 6.2 On arrival in the U.K. a visitor coming to marry or form a civil partnership, or give notice of this, in the UK must have a valid visit visa endorsed with this purpose and the name of the holder's fiancé(e) or proposed civil partner.
Additional eligibility requirements for a marriage or civil partnership visit visa
V 6.3 An applicant seeking to come to the U.K. as a visitor who wishes to give notice of marriage or civil partnership, or marry or form a civil partnership, in the U.K. during that visit must satisfy the decision maker that they:
(a) intend to give notice of marriage or civil partnership; or
(b) intend to marry or form a civil partnership; and
(c) do not intend to give notice of or enter into a sham marriage or sham civil partnership, within the validity period covered by their visit visa.

The first point with these rules is that you first have to meet all the other visitor rules. This is what is meant by "meet the requirements at V 4.2 – V 4.10." Those requirements are that you must not intend to work, study beyond certain allowances, or do any of the other things that you are not allowed to do on a visit visa.

Importantly, you must demonstrate that you will leave the U.K. before your marriage visit visa expires.

The royal bride-to-be must, like anyone else, demonstrate to an entry clearance officer that she meets all these rules before getting on the plane, providing documentary evidence of the forthcoming wedding. She will also have to provide fingerprints and a photograph.

As an actor, she presumably has headshots handy, but these will be no use: this "biometric information" must be provided at U.S. Department of Homeland Security application support centre. If she does not comply with these requirements, she faces the real threat of being denied entry to the U.K.

Finally, Ms Markle will have to show that she intends to get married within six months of her arrival and that the wedding is not a sham.

This leads to the first difficulty of the rules in my view. Anyone who has been involved with the preparations for a wedding knows that it is difficult to plan and execute a wedding within a six-month period. What evidence to provide in these circumstances? Useful evidence might show provisional bookings and deposits paid for the celebration to take place within the relevant time frame. Remember, though, that the visa may be refused and those deposits lost. It is not possible to extend the marriage visitor visa. The clock stops for no-one.

What about showing the marriage is not a sham? An entry clearance officer will expect evidence of a genuine relationship: emails, photographs, a record of visits, WhatsApp records. This is personal and intimate information that many may not want to share, but that will help build a picture of a genuine relationship.

And in that lies the rub. There would have to be very strong evidence to satisfy an entry clearance officer that a person in a genuine loving relationship with the fifth in line to the throne of the United Kingdom of Great Britain and Northern Ireland will then want to leave the U.K. and return to the States.

Fortunately, there is the possibility of making an application to enter the U.K. as a fiancée instead, allowing Ms Markle to make an application for further leave to remain once she is married.

Fiancée visa: much more suitable

The relevant rules this time are in Appendix FM to the Immigration Rules. Again, the application would need to be made before the royal bride got on the plane.
She would be making an application to enter the UK as Prince Harry's partner, as a fiancée is included within that definition in Appendix FM.

I will presume that Kensington Palace has already thoroughly vetted Ms Markle before the announcement and that there will be nothing in her history that would warrant a refusal under the Austen-esque "suitability" requirement, but there would be evidence required to show she meets the other requirements. These are:

E-ECP.2.1. The applicant's partner must be-
(a) a British Citizen in the U.K., subject to paragraph GEN.1.3.(c); or
(b) present and settled in the U.K., subject to paragraph GEN.1.3.(b); or
(c) in the UK with refugee leave or with humanitarian protection.
E-ECP.2.2. The applicant must be aged 18 or over at the date of application.
E-ECP.2.3. The partner must be aged 18 or over at the date of application.
E-ECP.2.4. The applicant and their partner must not be within the prohibited degree of relationship.
E-ECP.2.5. The applicant and their partner must have met in person.
E-ECP.2.6. The relationship between the applicant and their partner must be genuine and subsisting.
E-ECP.2.7. If the applicant and partner are married or in a civil partnership it must be a valid marriage or civil partnership, as specified.
E-ECP.2.8. If the applicant is a fiancé(e) or proposed civil partner they must be seeking entry to the UK to enable their marriage or civil partnership to take place.
E-ECP.2.9.
(i) Any previous relationship of the applicant or their partner must have broken down permanently, unless it is a relationship which falls within paragraph 278(i) of these Rules; and
(ii) If the applicant is a fiancé(e) or proposed civil partner, neither the applicant nor their partner can be married to, or in a civil partnership with, another person at the date of application.
E-ECP.2.10. The applicant and partner must intend to live together permanently in the U.K..

In this respect our couple have the advantage that the media and paparazzi have already decided this is a genuine relationship. Their public profile means that many of these rules will be easy to meet with evidence. Mere mortals may want to provide their passports, family photographs and evidence they have been visiting each other and remained in contact for the duration of their relationship. Phone records, money transfers and social media can all help with this.

Divorced people applying for a fiancée visa must provide evidence that they are in fact divorced rather than embarking upon a bigamous marriage. In this respect, Ms Markle has no particular advantage. She would be well advised to provide her divorce certificate. Failure to do so would mean a refusal as it is a requirement under Appendix FM-SE:

26. Marriages, civil partnerships or evidence of divorce or dissolution from outside the UK must be evidenced by a reasonable equivalent to the evidence detailed in paragraphs 22 to 25, valid under the law in force in the relevant country.

"Permanently in the U.K."

We can see that the rules above require that a couple "must intend to live together permanently in the UK" (E-ECP.2.10). This may come as news to Ms Markle, who has a very successful career as an actor outside the U.K.

The requirement is ambiguous, though. Unlike some other immigration categories there are no firm rules on maximum absences from the U.K. during a spouse visa before the spouse becomes ineligible for an eventual settlement application.

However, spending too much time apart is a red flag to Home Office officials. Their guidance tells them:

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 U.K. Each case must be judged on its merits, taking into account reasons for travel, length of absence and whether the applicant and partner traveled and lived together during the time spent outside the U.K.

One might hope that some common sense might be exercised here, but experience suggests common sense is a rare commodity at the Home Office—at least in cases not involving members of the royal family.

The minimum income requirement: a king's ransom

That is not all. We now come to the minimum income rule introduced in July 2012. This states:

E-ECP.3.1. The applicant must provide specified evidence, from the sources listed in paragraph E-ECP.3.2., of-
(a) a specified gross annual income of at least- (i) £18,600;
(ii) an additional £3,800 for the first child; and
(iii) an additional £2,400 for each additional child; alone or in combination with
(b) specified savings of-
(i) £16,000; and
(ii) additional savings of an amount equivalent to 2.5 times the amount which is the difference between the gross annual income from the sources listed in paragraph E-ECP.3.2.(a)-(d) and the total amount required under paragraph E-ECP.3.1.(a); or
E-ECP.3.2. When determining whether the financial requirement in paragraph E-ECP. 3.1. is met only the following sources will be taken into account-
(a) income of the partner from specified employment or self-employment, which, in respect of a partner returning to the U.K. with the applicant, can include specified employment or self-employment overseas and in the U.K.;
(b) specified pension income of the applicant and partner;
(c) any specified maternity allowance or bereavement benefit received by the partner in the UK or any specified payment relating to service in HM Forces received by the applicant or partner;
(d) other specified income of the applicant and partner; and
(e) specified savings of the applicant and partner.

Broken down, this means that with no children to support yet, the couple would have to demonstrate that Prince Harry has an income of £18,600 a year or savings equivalent to £16,000 plus 2.5 times the shortfall. Where there is no eligible income, the savings necessary will be £62,500, but this must be held in a cash account for a minimum period of 6 months.

That is not all. As well as consulting Appendix FM the couple, or their lawyers, will need to examine carefully a separate appendix, Appendix FM-SE. This sets out additional requirements not immediately obvious to the unwary. The income must be earned income and proof must be provided on exactly the right format of documents.

Online bank statements, for example, have to be "accompanied by a letter from the bank on its headed stationery confirming that the documents are authentic or which bear the official stamp of the issuing bank on every page". Many banks refuse to do this, leading to a situation of evidential impossibility. Any omission is punished with refusal and forfeiture of the application fee.

Perhaps fortunately, the rules were amended this summer after the Home Office lost a Supreme Court battle so that credible offers of "third party support," for example from a kindly monarch and grandmother, can now be taken into account.
Although a successful actor in her own right, Miss Markle's income would not be counted for the purposes of this application.

"Adequate accommodation, without recourse to public funds"

All marriage visa applicants will need to show that they can be supported "without recourse to public funds" for the duration of the visa. The potential for controversy over this particular issue is, luckily for the happy couple, avoided by a narrow definition of what counts as public funds at paragraph 6 of the Immigration Rules. Receipt of funds from the Civil List, the money granted to the royal family by Parliament, is not included in the definition.

There will also have to be evidence of suitable accommodation that is not overcrowded or in contravention of public health regulations:

E-ECP.3.4. The applicant must provide evidence that there will be adequate accommodation, without recourse to public funds, for the family, including other family members who are not included in the application but who live in the same household, which the family own or occupy exclusively: accommodation will not be regarded as adequate if-

(a) it is, or will be, overcrowded; or

(b) it contravenes public health regulations.

A tenancy agreement, mortgage document or evidence of ownership can be used. This is one area where help from a third party can be used without relying on exceptions. A letter from the Queen stating they are able to stay at one of her properties, along with evidence of her ownership and the size of the property in question, may suffice.

Hardly the Queen's English, but it will do

As Ms Markle is an American citizen, the production of her passport will be sufficient to demonstrate she meets the English language requirements. Others not blessed with her nationality would have to undertake an English language test at a secure testing center or show they have studied a degree taught in the English language.

Sham marriage checks

This is not quite the end of the matter for the happy couple. Under the Immigration Act 2014, both parties to a marriage where one is a non-EEA national must give notice of their marriage at a designated registry office. The notice period was recently extended to 28 days in all cases to give the Home Office a chance to decide whether to intervene or not. Both must attend in person. This is even though their relationship has already been tested and accepted as genuine by the Home Office.

In this case, the pair will have to attend the registry office in Maidenhead town hall.

Subject to meeting all those rules, Ms Markle will be granted permission to enter the UK for six months, with no right to work while here, to enable the marriage to take place.

And the best news of all for the Home Office coffers wedded couple is that since the visa is only valid for six months, once married they get to do the whole thing again: this time via an in-country application as a spouse.

Nicholas Webb is a partner with NLS Solicitors, and is recognised as a leading Immigration Lawyer by The Legal 500 2017