Indefinite Leave to Remain as a Bereaved Partner
Daily reports of death during the Covid-19 pandemic has made many of us think about loved ones, how to protect them and the implications of life without them. If your leave to enter or remain is dependent on a relationship, what does happen if a partner passes away? The Immigration Rules in fact provide a route for indefinite leave to remain (ILR) as a bereaved partner. In this post we look at the requirements.
Indefinite leave to remain as a bereaved partner
Appendix FM, Section BPILR: Indefinite leave to remain (settlement) as a bereaved partner allows for an application, where an individual has lost their partner before they have settled in the UK.
There is of course a risk that any existing leave could be cancelled as the relationship, on which someone relies, is no longer in existence. It is therefore important to address this as soon as practicable.
This route does not apply to those who are in the UK under the points based system or as an EEA national. Different rules and regulations will apply in those circumstances.
The Home Office has made special provision for bereaved partners of HM Forces personnel to qualify for settlement early.
Requirements for indefinite leave to remain as a bereaved partner
The Applicant must be in the UK in order to make an application for ILR as a bereaved partner. If a partner were to pass away whilst abroad, it may well be that the remaining partner would not be permitted re-entry following examination by an Officer at the border. Or if the bereaved partner left the UK following the death, that might result in questioning and refusal of re-entry.
The Applicant for bereaved partner ILR must make a valid application. The current cost of an application is £2,389 and applications are made online. Of course it may always be possible to apply for a fee waiver in limited circumstances. The Fee Waiver: Human Rights-based and other specified applications, Version 3.0, published on 04 January 2019 gives further guidance.
The suitability requirements need to be met, which as we have examined before, relate to criminality, deception, false information, litigation or NHS debt. If the Applicant is here with leave as a partner it is likely that these requirements are met unless there has been a change in circumstances.
The Applicant will need to hold leave to remain as the partner of a British citizen or a settled person. A partner does not include a fiance(e) or proposed civil partner. The definition does include those whose last grant of leave was as a bereaved partner. This might be in circumstances where there were criminal convictions that prevented an application for ILR.
The bereaved partner applicant will need to have been granted leave as a partner, which might arise even if someone is granted leave to remain outside of the rules, or on an exceptional basis as a partner. This can be difficult if the grant is not clear. A subject access request might be a practical consideration.
There is no requirement for an applicant for ILR as a bereaved partner to have leave at the time of applying. An application can be made any time after a partner dies. The rules must envisage that a bereaved partner might not be focused on their immigration status at the time and will be suffering. It will be important to make an application as soon as practicable.
Evidence Required for a Bereaved Partner ILR application
The Applicant will need to prove the death of their partner. A death certificate will need to be provided.
In addition the bereaved partner will need to show that at the time of death the relationship was genuine and subsisting. The Applicant will need to show that they were living with their partner and intended to live permanently in the UK. There are various ways to demonstrate this and available evidence will need to be considered.
Importantly, there is no need to take the Life in the UK test or provide English language skills, as an Applicant would usually need to do when making an application for ILR.
Ensuring a human rights claim is raised
If refused, a bereavement application is not treated as a human rights claim and therefore there is no automatic right of appeal, see page 10 of the Rights of appeal Version 8.0, published 31 January 2020. It is therefore important that all evidence relating to a family life and private claim should be referenced.
In terms of raising an Applicant’s human rights, to secure an appeal children are an important consideration, as are the circumstances in the Applicant’s home country. If the children have permission to be in the UK as a partner’s dependent they will need to consider their eligibility to apply for leave.
In the event of refusal and if not recognised as a human rights claim, challenges by way of administrative review and judicial review will need to be considered.
An application for Bereaved Partner ILR can take up to 6 months to process.
Contact our Immigration Barristers
For expert advice and assistance in relation to an application for indefinite leave to remain as a bereaved partner, contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.