New Year, New …Nationality?
The news is official: The UK will have to go through its second “XIT”, this time with the Duke and Duchess of Sussex “stepping back from their royal duties and spending some time in North America”, more specifically: Canada. But is this that easy?
Leaving aside all royal intricacies that Buckingham Palace will have to deal with internally, I take a closer look at the legalities of such a sudden and mediatised plan for an expatriation abroad.
As Harry arrives in Canada, I shed some light on all possible options, whether realistic or not, and use this exercise not only to see how complicated it could become for the Sussexes to relocate, but also as a reminder that, as friendly and open as Canada is, immigration formalities and mandatory documentation may be necessary to be obtained prior to settling there.
Some readers may believe this is a futile exercise. After all, the Queen is also the Head of State and Queen of Canada. As such, she and her royal relatives could live and work as they please in Canada, no?
Well, the answer is not so simple. As a starter, despite holding the highest rank in Canada’s org-chart, the Queen herself is not a citizen of Canada. And even if she were, Canadian citizenship laws usually only allow the passing of citizenship from parents born abroad (i.e. outside Canada) to ONE generation. Exceptions exist and a full review would be needed here to decipher Canada’s complex Citizenship Law. But even in the event we assume the Queen could pass on complete citizenship rights to her son Charles, chances are the latter could not grant the same privilege to Harry.
What this means is that if the royal aspect is taken out of all this, Harry is a ‘commoner’ in Canada, having no different rights, nor permission to settle there than any other UK national.
And this is key for the first ‘best case scenario’ option. What truly happens when the ‘non-citizen Queen’, or any of her royal descendants, enters Canada is that they could be granted automatic access based on their royal status only. In mechanical terms, they could be ‘Internationally Protected Persons’ which means they are not only granted unquestioned access, but they also receive security at Canadian taxpayers’ expense. However, as Harry has been required to give up his “HRH” title, this option appears to not now exist – as recently confirmed on their website.
I won’t need to elaborate much on this one: Canada’s Immigration Minister does possess the discretionary authority to grant resident status, through a ministerial permit called TRP (Temporary Resident Permit). But this is rarely used and would normally require some level of humanitarian and compassionate grounds which are hard to find here.
The minister can also directly grant permanent status to anyone, but this has almost never been used. Nevertheless, this could be quite an easy option should Canada becomes highly interested in welcoming these famous new residents across the Atlantic.
Now, what if the Duke and Duchess are to be treated as ‘commoners’ and fully step away from their royal roles? In this case, the logical step would be to have a closer look at Meghan herself. As an American citizen, she also has no specific rights to settle long term in Canada. Visitor status is generally granted to US and UK citizens in Canada for 6 months only (with a possibility to extend), and assuming they can demonstrate they have the financial capacity to support themselves and to return to their home country at the end of their authorised stay.
So why can Meghan potentially be a better option for gaining Canadian legal status? During her previous life Meghan has worked several years, presumably under legal status, in Canada. It is highly probable that during those years, if things were handled properly, she has also filed for and obtained Permanent Resident status in Canada. It is important to remember here that this status is ‘permanent’ only in title and can in fact be lost if not exercised within the parameters of the law. But since she left only in 2017, there is a strong possibility that she is still within the requirements of ’living in Canada at least two years within the previous 5 years‘, and as such maintained a permanent Canadian status.
Equipped with this document, she could sponsor her husband Harry, and as such allow him (and their son) to become permanent residents of Canada. This could take some time however, but it is also possible to apply from within the country after having Harry and Archie entering initially as visitors, and hence not delaying their plans too much.
With this option, Meghan seems to have the upper hand as well. As a well-known actress if she was to secure a role with another production filming in Canada, chances are she would easily obtain an employment-based work permit, the same way she most likely did in the past. This would give Harry (remember, in this scenario he is not a royal anymore) a dependent status, possibly with an ‘open’ work permit as an accompanying spouse.
Even without an immediate job-offer, Canada has a 'self-employed” permanent residency option for People of significant Cultural or Athletic benefit to Canada. With at least two years of contribution as an actress within the last five years in Canada, and considering her overall reputation, age, and background, it is most likely that Meghan could secure this option, bringing similar benefits to her dependants as stated here above.
Only caveat? The processing time for this category is currently listed at 21 months. Therefore, just like Brexit, Megxit may have to postpone the execution of their plans.
Since Meghan’s path to permanent residency has been identified here above, what if Harry wanted to remain the main applicant in the process and opt for Canada’s widely popular points-based ‘Express Entry’ program instead?
Being somewhat old at 35, as per Canada’s selection grid, having never worked in Canada before, and possessing no accredited degree or diploma from a recognised Canadian post-secondary institution, sadly, the former Duke would not fall on Canada’s radar-map of talents to invite. At best, if he could secure pertinent employment, and ideally back-it up initially with a LMIA work permit (Canada’s Labour Market Test), his points total could be increased significantly, at least enough to finally receive an ITA (Invitation to Apply) and then file his actual Permanent Residency application.
Whilst not a realistic option, for completeness we can consider seeking asylum status. After all, all those attacks from the paparazzi and the UK press should make them feel persecuted more often than not, correct?
Well, sadly for them, Canada’s refugee system is not based on how people feel about their lives, but rather on the Geneva Convention which clearly establishes that asylum claimants must demonstrate fear of persecution based on either: Race, Religion, Political Opinion, Nationality, or Sexual Orientation. The risk of torture, death, or cruel and unusual treatment could also lead to the need for protection.
But the UK being listed as a ‘Safe Third Country’, and considering the overall living conditions of these two applicants, a swift refusal would most likely be the outcome for any refugee claim… Unless a strong precedent can be built, establishing that being in the tabloids the way they did is a cruel and unusual treatment.
Each and every immigration matter should always be assessed on a case by case basis. And chances are that if I were to sit down for a consultation with the Duke and Duchess, other strategies and options not even listed here, could stand out as the better solution for handling this matter.
All in all, it is most likely that the Sussexes will find viable options to legally live in Canada. But I hope that this blog serves as a good reminder that, royal or not, any relocation abroad requires proper planning ahead!
Philippe Tremblay is an attorney and owner of Tremblay Canadian Corporate Immigration, Toronto, Canada
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