Life has its ups and downs and sometimes we are faced with how fragile it can be. The recent epidemic has particularly brought this to the forefront, as there are many who have lost their loved ones.
Least of your worries…
At such a trying and emotional time, it is not desirable to be worried about what will happen with your visa, so this article seeks to answer the question: what happens to a migrant’s immigration status if their spouse dies?
As a UK Immigration Solicitor, I have recently supported a client who lost their spouse in the middle of the Spouse Visa renewal process. These are unusual circumstances, and therefore there isn’t a great deal of information readily available on the course of action to take.
The reprieve to arrest a possibly awkward outcome
By strict definition of the law, someone who is here on a Spouse or Partner Visa no longer qualifies for the same visa if that person dies.
However, the law anticipates the cruelty that would arise from such a strict definition and allows such persons to switch to Indefinite Leave to Remain, under what is called the Bereavement Partner Policy.
As you may know, a migrant who is married to a British Citizen would normally be granted a Spouse Visa for a probational period of up to 5 years, and be allowed to apply for Indefinite Leave to Remain after the 5 year period, provided that the marriage is still subsisting. Due to the requirements, this visa does away with most of the other requirements by issuing Indefinite Leave to Remain to a person directly, in the event that they lose their loved one.
Who does this apply to?
This policy only applies to persons who are in the UK with a limited Leave to Remain as the Partner of a British Citizen or a Settled Person (someone with Indefinite Leave to Remain). It is important to note that the rules do not distinguish between the route that the leave was granted on, for example 10 year Partner, 5 Year Spouse, or Leave Outside the Rules as a Partner.
Key Requirements for Bereaved Partner Visa
The requirements for this Visa are minimal compared to the normal Spouse Visa or Indefinite Leave to Remain, with no requirements for such things as meeting income thresholds or adequate maintenance. There are 5 main requirements
- Immigration Status – ones previous visa must have been as a partner/spouse and you should aim to apply as soon as practically possible.
- Death of Partner – you will need evidence of your partner’s death in the form of a Death Certificate.
- Genuine and Subsisting relationship in the UK before the death of a partner – this route is only available to those who were in a subsisting marriage or relationship and had continued to live together before the death of the partner. It, therefore, excludes those who were separated before the death occurred.
- A Valid Application must be submitted – unfortunately, although this policy is ‘generous,’ the visa is not issued automatically, and you need to submit a valid application using the correct form, pay the fee (currently £2,389) and submit all the supporting documents that are required.
- Suitability and good character requirements – these requirements are very similar to the requirements that you would have when applying for ordinary Indefinite Leave to Remain as a Spouse and encompasses things such as criminality, debts to the Home Office or NHS etc.
NB: it is possible that someone could meet all the requirements mentioned above, but fail to meet the suitability and good character requirements, and be granted Leave to Remain for 30 months, under Bereavement, with the possibility of applying again for Indefinite Leave to Remain once they meet the good character requirement.
What you don’t need
As noted above, the requirements for this visa application differ significantly from the usual requirements for Indefinite Leave to Remain with a Spouse Visa, and you don’t need:
- To pass the Life in the UK test
- To meet the English requirements
- To meet adequate accommodation requirements
- To meet adequate maintenance or income threshold requirements
When to apply
You can submit this application at any time following the death of your partner, and do not have to wait until your current visa is about to expire. In fact, you could even apply after your visa has expired, provided that you make the application as soon as it is reasonably practical to do so. It is notable that the Home Office guidance allows some leeway, envisaging that there may be some delays caused by the mourning period.
You could also apply for this visa while you still have a visa application pending.
For example, a client of ours had a Spouse Visa, which was due to expire in March; they had applied for an extension at the end of February, however, due to the Covid-19 lockdown, their Biometric enrolment appointment was postponed until July. Unfortunately, their British Spouse was taken ill in May and passed away in June. In this case, our client was able to vary their application and receive a refund of the Spouse Visa Application fee.
It is hoped that this class of visa will be irrelevant to most here on a Spouse or Partner Visa, but, with condolences, it should be reassuring to know that the law does allow for those in these sad circumstances to apply for Indefinite Leave to Remain, should they find themselves in this situation.
Finally, we hope that you and your loved ones are safe and well during these difficult times we are living in. Stay Safe.
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