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 and, uniquely for an indefinite leave to remain application, it is now possible to apply for a fee waiver for this application.

Who can apply?

Only those with leave to remain in the UK as a partner of a British national, a settled person or an EU national with pre-settled status under Appendix FM are eligible to apply. This also includes those with leave as a partner under Appendix HM Armed Forces as long as they are a partner of one of the following:

(i) a person who is a British citizen; or

(ii) a foreign and commonwealth citizen who was serving member of HM forces; or

(iii) a member of HM Armed forces who has applied for or been granted permission or settlement as a foreign and commonwealth citizen discharged from HM Armed Forces. 

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 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, unless they have leave as a partner under Appendix HM Armed Forces. If the couple are overseas on holiday when the sponsor 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.

Example

Simon is a 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, unless the applicant was last granted leave under Appendix FM Armed Forces, in which case it’s SET(AF).

Where a child is applying separately from the parent, but was not previously granted leave under Appendix FM Armed Forces, the form is SET(F).

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 £2,885. However, it is now possible to apply for a fee waiver for this application.

Suitability requirements

The suitability requirements are found in Appendix Bereaved Partner:

BP 2.1. The applicant must not fall for refusal under Part 9: grounds for refusal, but paragraph 9.8.4.(a) does not apply.

Paragraph 9.8.4(a) states:

9.8.4. In paragraphs 9.8.1. and 9.8.2, a person will only be treated as having previously breached immigration laws if, when they were aged 18 or over, they:

(a) overstayed their permission and neither paragraph 9.8.5. nor paragraph 9.8.6. apply

As paragraphs 9.8.1 and 9.8.2 only apply to entry clearance applications, this only applies to applicants who were last granted permission as a partner under Appendix HM Armed Forces, as they are the only ones who can make this application from outside the UK. In those cases, the usual requirement to provide a negative TB test also applies.

There is no longer a provision for granting limited leave instead of settlement where all the requirements are met other than suitability because of a criminal conviction. This may be because part 9 of the rules now applies to this category, where the kinds of convictions that previously qualified for limited leave require the decision maker to exercise discretion as to whether to grant or refuse the application. Hopefully, this means discretion in such cases will be exercised to grant indefinite leave to remain rather than refuse the application outright.

Eligibility requirements

The rules do not require the applicant to have current leave, only for their most recent leave to have been in one of the eligible categories, as described above.

Example

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 states:

You should not make detailed enquiries about the subsistence of the relationship unless, for example, doubts were expressed when the initial period of leave to remain was granted, or allegations have since been made. Although you can refuse an application in these circumstances, where the applicant is unable to prove the subsistence of the relationship at the time of the partner’s death, there needs to be clear evidence the relationship was not subsisting at the time of death. You must always make any enquiries with care and tact, to avoid any unnecessary distress to the applicant.

When I prepare these applications, I always put in recent cohabitation evidence, i.e. correspondence addressed to the family home addressed to the couple jointly or in separate names just to be on the safe side.

There is no longer a requirement for the couple to have intended to live together permanently in the UK.

Dependent child

The child of the person applying as a bereaved partner can apply for settlement alongside them provided the following requirements are met:

• The requirements in Appendix Children, which we have previously covered here
• If the child is over 18, they will need to meet the English language and Life in the UK requirements, even though the main applicant does not need to
• They must meet the adequate maintenance and accommodation requirement

Fee waiver

Following the grant of permission in NR v Secretary of State for the Home Department (AC-2023-LON-002042) in 2023, the Home Office agreed to amend its fee waiver policy and the relevant fees regulations to enable people applying in this category to apply for a fee waiver from 9 October 2024.

We expect the fee waiver guidance to be updated in line with this change shortly.

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 attract a right of appeal. Its policy is that any human rights grounds must be raised in a separate human rights application if they are to be considered and, if refused, attract a right of appeal for the applicant. This policy was upheld by the Court of Appeal in MY (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1500.

However, this does not mean that there is no merit in raising human rights grounds in the application, as it is possible to ask for discretion to be exercised where a requirement is not met. This is particularly relevant where the applicant has a criminal conviction which may lead to a refusal depending on how the Home Office exercises its discretion. If there are children from the relationship, these should be clearly mentioned. It is also useful to provide evidence of the applicant’s roots in the UK and their integration.

Because there is no way to appeal a refusal of this application, the only way to challenge the decision will be via an internal administrative review and if the refusal is maintained, judicial review.

With acknowledgement to Nicholas Webb who was the original author of the original version of this post published in October 2018.