Apply to settle in the UK (widow)

[LesleyAnn]

I am widowed to a UK citizen and was given limited leave to remain which was valid Sept 2005 - Sept 2008 and resided with my terminally ill husband in the UK from January 2004 to May 2006 - During this time I received carer benefits to take care of him. I was unaware that I had to apply for indefinite leave to remain when my husband passed and went home to South Africa as my father was ill. My son resides in the UK as a citizen and I would like to resettle and work in the UK. I have a national insurance number as well.

I have researched several options for going back to the UK but seem to be struggling to get clarity on the best way for me to do this.
I don't want to apply as a dependent as I intend to work.
Am I able to apply under a bereaved partner visa?
I have also been directed to apply for a spouse visa (new application) but am unsure of the requirements I need to meet now in order to do this.

What other ways could I go about applying? A working visa? I am 54 years old and would like to do some caring work which I think is considered under a social work status being sponsored by the employer. This, however, I am thinking may limit me to working in a care home which I don't mind starting in but how do I settle there eventually?

I am coming on a family visitor's visa in May and would like to change my visa status if possible.

Any thoughts or suggestions??

[CR001]

I am sorry to hear of your difficult situation. So easily fixed if you had applied for ILR and remained in the UK back then.

I am coming on a family visitor's visa in May and would like to change my visa status if possible.

You will not be allowed to switch visas in the UK if you are on a visitor visa. The rules simply don't allow it.

As a bereaved partner, the recourse to remaining in the UK would only apply if your partner had passed away in the UK and you were here too. No options for your as you live in SA and have done for a few years now.

There does not appear to be any type of entry clearance visa that you could apply for based on your deceased British Spouse. A spouse visa requires a sponsor and unless you have remarried a British citizen, this route will be closed to you. The requirements are also far more difficult compared to when you last had a spouse visa.

On the now very small group of sponsored work visa, you will probably struggle to find a sponsor too.

Please think very carefully before you consider applying for an Adult Dependent Relative visa (your son as sponsor). The criteria to meet this visa are virtually impossible. We have only heard of about 3 (maybe 4) approvals of this visa since the rules were changed in July 2012. If you choose to apply for this visa and are refused, you will be shutting the door on any further visit visas to the UK as your intention to settle will be known. Extract of the gov.uk page below :

https://www.gov.uk/join-family-in-uk/eligibility

Coming to be cared for - you’re an adult dependent relative
You must be dependent on a parent, grandchild, brother, sister, son or daughter of someone living permanently in the UK.
You must prove that:
* you need long-term care to do everyday personal and household tasks
* the care you need is not available or affordable in the country you live in
* the person you’ll be joining in the UK will be able to support, accommodate and care for you without claiming public funds for at least 5 years
* you’re 18 or over

Another option if your son is willing to help is to try the Surinder Singh route, ie he moves the 'centre of his live' to an EU member state for 6 months to a year (more or less) and you join him in the member state and return to the UK using the SS route and the EEA Family Permit. He could relocate to any of the EU states, including the Republic of Ireland (language not an issue then). It is a bit of an extreme way but there have been successes although it is a route the UK authorities are looking at clamping down on.

[Amber]

Assuming that you were granted leave under Part 8 of the immigration rules, he died during such leave and you intended to live together and the relationship was subsisting when he died, then subject to the general grounds for refusal, an application for ILR, settlement, should still be permissible under 287(b) as extant leave does not appear to be required. The application would be SET(O), technically, a visit visa is contravened if a person intends to settle.

[LesleyAnn]

When you say a visit visa is contravened please clarify. Does this mean I will have to go back to South Africa in order to apply for the set(o) as I won't be able to apply on the family visit visa? Under 287(b) I was married to my partner for 25 years and it states in there unmarried or same sex so does this still apply to me?

[Amber]

287 says the spouse or civil partner you were the spouse.

What I am saying is if you were to tell the ECO that you intended to settle your visit visa would almost certainly be refused as you are not supposed to intend to settle when visiting! Can you make an application under 287(b) without extant leave? Yes, I believe so. You must apply for SET(O) in the UK not abroad. You'll need his death certificate, your visa from when you were his spouse, letters for you both to the same address when he died e.g council tax. Before you apply you need to check that your leave you were granted previously was not discretionary leave to remain, ensure it was leave under Part 8 of the immigration rules. It will say on the decision letter. If your leave says no recourse to public funds then it's most likely under Part 8. Note; you were not supposed to claim carers allowance as that is a public fund.

[Casa]

Amber, how will she switch to SET(O) from a visitor visa? Am I missing something?

[LesleyAnn]

The visa in my passport for indefinite leave states no recourse to public funds but the last letter dated March 2006 states...conditions attached to your clients leave to remain
1) mrs... Did not qualify for leave to remain in the United Kingdom under the immigration rules, discretion was exercised in her favor
2) mrs... Was not granted leave to remain under the immigration rules relating to the spouse of a person present and settled in the Uk
3) mrs...is allowed to work in the Uk
4) mrs...will not qualify to apply for ILR to remain on the basis of marriage as her discretionary leave was granted outside the immigration rules (iced 2631)
5) taking into consideration the fact that mr...is suffering from cancer, if he were to die during the two year period, any application from mrs...will be considered in its own merit.

I don't understand how I would be getting carers benefits and income support if I weren't entitled to them. I was also given bereavement benefits after he passed and I have a national health number.

[Amber]

She could have applied for SET(O) Casa as under 287(b) extant leave is not required.

However, the OP appears to have been granted leave outside the rules - discretionary leave. Although that should have permitted recourse to public funds at that time.

OP, it appears that that letter has fettered the idea of applying for SET(O) as you were not granted leave under Part 8. Public funds includes Carer's Allowance and Income Support but not the bereavement benefits as they're contribution based.

Were either of your grandparents British?

[LesleyAnn]

No neither of my grandparents were British. So if set(o) is off the table what would be my next best option?
My son is living in the Uk with his family but I want to be able to work there so not limited by a dependent visa?

[Amber]

I'm afraid so, if you were not granted leave previously under Part 8 of the immigration rules.

An adult dependent visa is not going to happen as it's far too restrictive. The best bet may be the EEA Singh route as described by CR001 previously.

[LesleyAnn]

I also have a common law partner who had been living with me in South Africa for seven years before he had returned to the uk in August to live. We had planned to get together again once I came which I did not think would be an issue but now am realizing that it may be harder than I had anticipated.
I had thought that applying as a common law partner may be an option but now we haven't been living together for the past 7 months so am thinking this may not help my case either. Any thoughts on that route?

[CR001]

If your partner is British, you can still look at and try the Surinder Singh route.

[LesleyAnn]

He is British but receiving a pension now and does not earn a salary. A few odd jobs here or there. I am 11 years younger so was planning to work some caring posts and then return to him. Is it possible to apply for a working visa to do caring work? Are there agencies that are willing to sponsor workers to come in and do caring work?

[CR001]

The only work visa still available is Tier 2 and Tier 2 ICT - both of them you have to have a UK company sponsor and be highly qualified. They are not easy to get.

He can still do the EU move to help you as a self sufficient person and working part time in a EU country. Perhaps Amber, Casa or Obie could explain in more detail the ins and outs for a British pensioner using the EU route for you.