Client Affairs

EXCLUSIVE GUEST ARTICLE: Varying Approaches To Global Migration For Non-Nuclear Families

Nadine Goldfoot Fragomen Partner 1 December 2015

EXCLUSIVE GUEST ARTICLE: Varying Approaches To Global Migration For Non-Nuclear Families

In this article, law firm Fragomen examines global mobility from the perspective of wealthy non-nuclear families.

In an increasingly globalised world, high net worth individuals have assets and family members scattered across a number of jurisdictions. These individuals therefore need to be up-to-date with what varying legal systems mean for their wealth. For a non-nuclear family – as opposed to the traditional family unit consisting of a pair of adults and their children –  global mobility is significantly more complex. In this article, Nadine Goldfoot, partner at Fragomen, explores the investor migration models available and unavailable to such families. The editors of this publication are delighted to share this article with readers and, as always, invite readers to respond.

The world’s population of high net worth individuals (HNWIs) is increasing, and HNWI wealth is expected to reach a record $64.3 trillion by 2016, of which almost $12 trillion is projected to come from new HNWIs. HNWIs are driven into global mobility by many motivating factors: family security and lifestyle are often key drivers. The benefits of HNWI migration for children, for example, can be immense, particularly across the EU through access to education; visa-free travel amongst Schengen countries; or, for those opting for citizenship models, through obtaining citizenship and rights of free movement and establishment with EU nationality. 

Dealing with international HNW families based across several legal and cultural systems can be complex, with global investor migration programmes varying markedly around these issues. Whilst on one hand there is considerable competition to attract these individuals, on the other, there are discrepancies in how the all-important concept of family is defined in investor migration policies. 

The common ground

Global investor migration models recognise the "traditional nuclear" family as entitled to apply for investment-based residency or citizenship: a spouse and child under the age of 18 will almost always be accepted as an eligible family member. That is the common ground. Programmes otherwise differ in terms of whether they will allow same-sex or unmarried spouses, overage children and elderly dependants to apply alongside the main applicant. Where they do not allow inclusion, those family members must apply in their own right, meeting investment and other eligibility criteria set for the chosen jurisdiction. 

Disparities in global investor migration models 

There are jurisdictions that completely recognise same-sex marriage, yet on the other end of the spectrum same-sex marriage is not recognised in some jurisdictions. In others, it is illegal. Caribbean options for HNWIs, such as the Citizenship by Investment programmes in Antigua and Barbuda, and in St Kitts and Nevis (popular solutions for facilitating ease of travel and attractive for their location, investment thresholds and little to no residency requirement), exclude same-sex partners. A same-sex couple would have to apply to these programmes in their own right, effectively doubling the investment threshold. 

Across the EU, there is some uniformity in that same-sex partners will generally be recognised in the same way as heterosexual spouses. However, even within the EU, Bulgaria and Cyprus will not recognise same-sex marriages. Latvia will recognise same-sex partners, but only where the partnership is legally registered.  

Definitions of "child" too vary. Some HNWI migration programmes will exclude children over 18 years of age entirely. Under the UK’s Tier 1 Investor programme,  a child must be under 18 at the date of the initial application. Bulgaria too sets the age at 18. Antigua and Barbuda’s Citizenship  programme will accept children up to the age of 26; in St Kitts and Nevis, the age is up to 25, if the child is single and a full-time student (or suffers a physical or mental disability); Malta’s Individual Investor Programme will accept child dependants up to the age of 26; Cyprus’s Naturalisation programme sets the limit at 28 years, if dependency is shown; Australia’s Significant and Premium Investor Visa programmes only allow overage dependants where they have been financially dependant for 12 months and are sharing the same household; Portugal’s popular Golden Residence Permit will allow overage dependants exceptionally up to the age of 23, or if in full-time study in Portugal and dependant; and Singapore’s Global Investor Programme sets the limit at 21 (the child must also be unmarried). 

Whilst one solution for HNW families with overage children may be to make them main applicants, this adds to the financial burden considerably. There can often be other factors at play in making the child a main applicant. The UK allowed 16-year old main applicants to apply to the UK’s Tier 1 Investor programme until the law changed in November 2014, raising the minimum age of investor applicants to 18. In some jurisdictions, parental movement will impact upon the immigration status of the child: residency requirements may be imposed on the main applicant that impact on the ability of the child to apply for PR or citizenship. For example, Malta requires the main applicant to show 12 months’ effective residence in order for the whole family to qualify for citizenship. Although "effective residence" can in places be liberally defined, this needs to be carefully considered where a HNW parent is using investor routes to establish the child in that country. 

Rules for other overage dependants such as elderly parents also vary. The UK has very strict rules that generally do not allow for elderly dependants, other than in most exceptional circumstances. Whereas Antigua and Barbuda’s, and Malta’s, citizenship programmes, for example, will welcome elderly dependants (defined as over 65 and over 55 respectively) for additional, and not insignificant, fees.  

Child custody and sole responsibility 

Another problematic area for HNW family migration arises where a child’s parents are not married, or their parents’ marriage subsists but they do not live together, or where the parents’ marriage has been dissolved. Questions will arise around whether the child qualifies to join or remain with the HNW parent applicant, and will often require that parent to demonstrate historic sole responsibility for the child’s upbringing. Careful planning will be required in such cases, and evidential burdens are high, complicating and prolonging the application process.  

Strategic solutions and long-term planning

HNWIs tend to look holistically at what is on offer, balancing the best investor programmes from a personal perspective against political, security and regulatory issues. Some investors will even apply for multiple programmes at the same time, for example to improve access to visa-free travel in the short-term while working toward citizenship in a traditional destination where they actually intend to settle permanently. A holistic approach here is key both in terms of navigating clients towards a long-term strategic solution that meets their family requirements, and understanding in detail the ins and outs of these programmes both from a practical and principled perspective.

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