Credit: Taylor Hernandez on Unsplash
This post is about what happens to a migrant who is in the UK on a partner visa if their sponsor passes away. If their partner dies before the migrant becomes settled, the last thing on their mind will be their immigration status. However, as status as a partner is based on there being a genuine relationship, they are liable to have leave in the UK cancelled as the relationship no longer exists.
Contrary to most opinions, the Immigration Rules are not completely without compassion. There is a route for migrants in these circumstances to apply for indefinite leave to remain.
Who can apply?
Only those with leave to remain in the UK as a partner of a British national or a settled person are eligible to apply. Those in the UK as fiancé(e)s or proposed civil partners are not eligible.
Those who have permission to stay in the UK as a dependent of another migrant, say a spouse of a tier 4 student will not qualify. There are also different rules for those who are partners of EEA nationals.
Making an application
The applicant must be in the UK. If the couple are overseas on holiday when the British/settled partner dies, this may cause difficulty. In theory a potential applicant could be refused entry as they would no longer meet the requirement of being in a relationship with their partner. It would be a harsh and unsympathetic decision, but legally sound.
Simon is an Zimbabwean national in a civil partnership with Trevor, a British national. While on holiday in Spain Trevor suffers a heart attack and dies. On return to the UK with Trevor’s body Simon is refused entry at the border because he is no longer meets the requirements of the Immigration Rules.
A valid application is made using form SET(O) available at the Home Office website. It is also a requirement to submit a valid passport and pay the application fee. Failing to tick these boxes means that the Home Office will reject the application without even considering the substance of it.
The application fee for indefinite leave to remain at the time of writing is an eye watering £2,389. It is not possible to apply for a fee waiver for this type of application and the alternative to not paying the fee is applying in another category or leaving the UK.
The suitability requirements are the same as for other applications for indefinite leave under Appendix FM. They relate to criminality and bad character, providing false information and owing money to the Home Office or NHS.
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Where an applicant otherwise meets the rules but has been sentenced to imprisonment for less than 12 months in the last seven years or has had a non-custodial sentence or out of court disposal in the last two years, rather than an outright refusal the applicant will usually be granted 30 months leave to remain.
For those who know they will be granted only further leave to remain in the UK there is a sting in the tail: they still have to use form SET(O) and therefore pay the full form SET(O)fee of £2398. Most applications for further leave to remain in the UK attract a fee of £1,033, but the Home Office will not offer a refund if only further rather than indefinite leave is granted. In fact, the Home Office will ask the applicant to pay the Immigration Health Surcharge as well.
Cat, a US citizen, was married to a British national, Sam, who has passed away. Cat was cautioned for a public order offence 12 months ago. Although she knows her application as a bereaved partner will result in only 30 months further leave to remain she has to pay the £2,389 application fee. Before the Home Office officials make a decision on her case, they write to her and demand that she pay an additional £500 for the Immigration Health Surcharge. If Cat fails to pay her application will be rejected.
As we mentioned at the outset, only those who had leave to remain as the partner of a British citizen or a settled person, or those previously granted 30 months leave to remain as a bereaved partner, are able to apply.
For those making their first application under this route there is no requirement that their leave must have been granted under a specific rule, only that the applicant has been granted as a partner. This means in practice that those granted leave outside the Immigration Rules are also able to apply if that leave was granted as a partner. The Upper Tribunal confirmed this to be the legal position in the unreported decision of Richards v Secretary of State for the Home Department HU/17336/2016.
Sheryll, a Philippine national, entered the UK as a visitor in 2010. She overstayed her visa and married a British citizen. Sheryll was granted permission to stay outside of the Immigration Rules in 2012 because her husband could not leave the UK. She was granted further permission as a partner in a second application, again outside the Rules.
If Sheryll’s husband dies, she will be allowed to apply under the bereaved partner route even though she does not have leave under the rules.
There is no requirement to have leave to remain at the date of the application. In other words, the bereaved partner can apply even if their visa has technically expired and they have become an “overstayer”. This recognises that those who have lost a loved one have more important things to think about than their immigration status.
The Home Office guidance on the rules states that any period of overstaying must only relate to a period of bereavement. This is not supported by the wording of the Immigration Rules. A significant delay however, might lead to refusal under the suitability requirements. In any event I would advise a client to submit the application as soon as they are able.
Taylor, a South African national, lives in the UK as the spouse of her British husband, Louie. She has four weeks left of her leave (i.e. on her visa) and is planning on making an application to extend her leave.
Louie is taken into hospital having been diagnosed with late stage cancer before being moved to a Hospice where he passes away two weeks later. It is only four weeks later, after the funeral, that Taylor makes the application to remain as a bereaved partner. Taylor’s application should not be refused although she is an overstayer.
Death of partner
The applicant must show that their partner has died. Home Office guidance on this requirement states that a death certificate will suffice as evidence.
A genuine and subsisting relationship and an intention to live together permanently in the UK
An applicant must show that the date of their partner’s death the relationship was genuine and subsisting. The Home Office is unlikely to make detailed enquires unless there are doubts about the relationship, either raised in a previous application or where allegations have subsequently been made.
The Home Office guidance on this identifies some factors that indicate a genuine and subsisting relationship and many more factors that point against. It is a useful start for identifying the types of evidence that might be useful. It is really about building a picture of the relationship: I always advise clients to provide family photographs, social media contact and correspondence addressed to the family home addressed to the couple jointly or in separate names.
This type of correspondence also goes to demonstrate that there was an intention to live together permanently in the UK. That said, it is important to recognise that even time apart or outside of the country does not prevent this rule from being met, but that the specific circumstances of the case will be considered.
Marinette, a national of Sierra Leone, was married to Adrian, a British national who worked in the oil industry. Adrian was contracted overseas for several months at a time but returned home in between contracts. The house was jointly owned by the couple and Adrian had his correspondence sent to that address. In these circumstances the Home Office are likely to accept there was an intention for Marinette and Adrian to live permanently together in the UK.
What if the application is refused?
The Home Office does not accept that an application as a bereaved partner is a human rights claim and therefore it does not automatically attract a right of appeal. It is therefore important that a human rights claim is made on the application form and in any accompanying letter and that evidence is submitted.
If there are children from the relationship, these should be clearly mentioned as this would raise a family life issue. But I would advise clients to provide evidence of their roots in the UK and their integration. In the past clients have provided letters from friends and extended family, details of the clubs and societies they have been members of, even details of activities they have taken part as part of their religious observance. I do not pretend that this evidence would result in a grant of status by the Home Office by themselves, but it will demonstrate a private life in the UK that engages a human rights claim and therefore a right of appeal.
Unless a human rights claim is made, the only way to challenge the decision will be via an internal administrative review or a judicial review, neither of which are well suited to the task of making a factual finding usually required in these types of cases. A cynic would say that is why the Home Office has designed the system like this, but I couldn’t possibly comment.