Leave outside the Immigration Rules - ICS Legal Blog

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Leave outside the Immigration Rules

Leave outside the Immigration Rules (LOTR) is a new revised policy to grant leave to remain in the UK. The Home Policy on LOTR is being granted on the following basis:

  1. The circumstances in which someone may be granted leave LOTR are covered guidance relating to European Convention on Human Rights (ECHR) Article 3 medical, Discretionary Leave, or where there is an existing published concession.
  2. Applications relating to LOTR on Article 8 family and private life grounds must instead refer to the 5-year or 10-year partner, parent and private life guidance.
  3. Applications relating to Article 3 medical grounds must instead refer to the discretionary leave guidance.

The Immigration Rules are designed to provide for the vast majority of those wishing to enter or remain in the UK however, the Secretary of State has the power to grant leave on a discretionary basis outside the Immigration Rules from the residual discretion under the Immigration Act 1971.

From 1 April 2003 to 9 July 2012 the majority of applications which fell outside the Immigration Rules in the UK were considered within the discretionary leave (DL) criteria, which (along with humanitarian protection) replaced exceptional leave to enter or remain (ELTE or ELTR). This included cases on family, private life, medical and other European Convention on Human Rights (ECHR) grounds.

On 9 July 2012 and 10 August 2017, legislation was changed to bring the majority of family and private life cases under part 7 paragraph 276ADE(1) and Appendix FM of the Immigration Rules. In relation to family and private life cases, there will be a consideration of any exceptional circumstances that apply – for family life cases this is built into Appendix FM of the Immigration Rules and for private life cases this consideration is done outside of the Immigration Rules.

In all family and private life cases, the decision maker will consider whether the Immigration Rules are otherwise met and if not, will go on to consider whether there are exceptional circumstances which would render refusal a breach of ECHR Article 8 because it would result in unjustifiably harsh consequences for the applicant or their family.

Each application is considered on its merits and on a case-by-case basis taking into account the individual circumstances. Leave outside the Immigration Rules (LOTR) on compelling compassionate grounds may be granted where the decision maker decides that the specific circumstances of the case includes exceptional circumstances. These circumstances will mean that a refusal would result in unjustifiably harsh consequences for the applicant or their family, but which do not render refusal a breach of ECHR Article 8, Article 3, refugee convention or other obligations.

Important principles on the Leave outside the Immigration Rules (LOTR)

A grant of Leave outside the Immigration Rules (LOTR) should be rare. Discretion should be used sparingly where there are factors that warrant a grant of leave despite the requirements of the Immigration Rules or specific policies having not been met. Factors raised in their application must mean it would not be proportionate to expect the person to remain outside of the UK or to leave the UK.

The Immigration Rules have been written with clear objectives and applicants are expected to make an application for leave to enter or remain in the UK on an appropriate route under the relevant Immigration Rules and meet the requirements of the category under which they are applying – including paying any fees due.

Considerations of whether to grant Leave outside the Immigration Rules (LOTR) should not undermine the objectives of the rules or create a parallel regime for those who do not meet them. Where you consider LOTR, you must have regard to part 9 grounds for refusal within the Immigration Rules and refer to the general grounds for refusal guidance.

The period of Leave outside the Immigration Rules (LOTR) granted should be of a duration that is suitable to accommodate or overcome the compassionate compelling grounds raised and no more than necessary based on the individual facts of a case. Most successful applicants would require leave for a specific, often short, one-off period.

Indefinite leave to enter or remain can be granted outside the rules where the grounds are so exceptional that they warrant it. Such cases are likely to be extremely rare. The length of leave will depend on the circumstances of the case. Applicants who are granted LOTR are not considered to be on a route to settlement (indefinite leave to remain) unless leave is granted in a specific concessionary route to settlement.

Documentary evidence on Leave outside the Immigration Rules (LOTR)

Applicants seeking Leave outside the Immigration Rules (LOTR) must provide documentary evidence to support their claim. Where an applicant seeks to remain to overcome a personal tragedy, they must provide evidence of the reasons that they must remain in the UK, and for how long. Attendance at a funeral, or to give evidence in an inquiry if the timings do not allow for them to leave and return in sufficient time to attend in-person are examples which may justify a short period of LOTR.

Where an applicant wishes to include a medical circumstance as a compelling compassionate ground relating to them or a dependant, they must submit satisfactory medical evidence from a medical practitioner who is qualified in the appropriate field. Such evidence must include details of the relevant medical circumstance and why it requires a period of leave on compelling compassionate grounds. However, where the applicant seeks to rely on medical grounds as the basis of their claim, they should make an application in accordance with Discretionary leave guidance.

If you require further advice, or help on the policy change, speak to us on 0207 237 3388 or email us at info@icslegal.com. You can also complete our free assessment, by clicking here