Discretionary leave to remain was previously part of the legacy route of being granted leave to remain in the UK, based outside the Immigration Rules and on most cases considering your human rights grounds. Most of the "human rights" based applications are now considered under Appendix FM, Part 7 of the Immigration Rules or LOTR, however there are still applications being considered under this concessionary policy.
At ICS Legal we understand you require clear guidance on how to move forward where there are complex issues surrounding your stay. On this page we have sought to provide a definition of this category and possible circumstances where an application can be made.
Please note if you are part of the transitional arrangement, then contact our team on 0207 237 3388 or e-mail us your case details to firstname.lastname@example.org.
Background to the grant of discretionary leave to remain
When a person cannot apply for leave to remain in a capacity contained with the immigration rules, the Home Office has the legal power to grant leave on a discretionary basis outside the Rules from her residual discretion under the Immigration Act 1971. Discretionary Leave (DL) is a form of leave to remain that is granted outside the Immigration Rules in accordance with this policy. Applications for DL cannot be made from outside the UK.
Application based on discretionary leave to remain
Discretionary Leave (DL) applies in both asylum and non-asylum cases applying from within the UK. DL cannot be applied for abroad. It is intended to cover exceptional and compassionate circumstances and, as such, should be used sparingly. DL is granted outside the Immigration Rules in accordance with Home Office policy set out in their instruction. It must not be granted where a person qualifies for asylum or humanitarian protection (HP) or other family or private life reasons.
The Immigration Rules are designed to cover the vast majority of circumstances in which migrants will be granted leave because they are entitled to remain in the UK. However, there are a small number of Home Office policies that recognise there may be individuals who do not meet the requirements of the Immigration Rules, but there are nonetheless exceptional and/or compassionate reasons for allowing them to remain here. There is a separate policy on when to grant leave to remain outside the rules for Article 8 reasons based on exceptional circumstances for those who fail to meet the family and private life Immigration Rules.
Although several concessions outside the rules have been closed and others have been brought inside the rules, most notably as part of the Points Based System, a small number of concessions continue to exist. The circumstances in which someone may be granted leave for exceptional (non-family or private life) reasons are covered by the discretionary leave policy.
When was Discretionary Leave introduced, and how has this changed to current rules under Appendix FM
Discretionary Leave was introduced alongside HP in April 2003 to replace Exceptional Leave to Remain (ELR) and was initially used to grant leave for Article 8 reasons where removal would breach our obligations under Article 8 of the European Convention on Human Rights (ECHR). However, following the implementation of the family and private life rules on 9 July 2012, Discretionary Leave should no longer be granted where the requirements of those rules in Appendix FM or paragraphs 276ADE(1) to 276CE are met or where LOTR should be granted for Article 8 reasons. Transitional arrangements apply to those granted Discretionary Leave for Article 8 reasons before 9 July 2012.
Discretionary Leave (DL) must not be granted where an individual qualifies for leave under the Immigration Rules or for Leave outside the Rules (LOTR) for Article 8 reasons. It only applies to those who provide evidence of exceptional compassionate circumstances or there are other compelling reasons to grant leave on a discretionary basis.
Discretionary Leave should not be granted where another EU Member State (or Iceland, Norway, Switzerland or Liechtenstein) has accepted responsibility for an asylum claim under the Dublin arrangements or where an individual is otherwise removable on third country grounds. Discretionary Leave should not normally be granted to EEA nationals (or their family members) where they have free movement rights under EU law. It is not possible to cover all the circumstances in which Discretionary Leave may be appropriate because this depends on the totality of evidence available in individual cases but the following broad categories may apply.
Medical based application under discretionary leave policy
An application on medical grounds will usually be based on either Article 3 or 8 of the European Convention of Human Rights (ECHR). You will need to provide both information and substantial evidences to support your application under medical grounds.
Article 3 of the ECHR are relied upon when someone is at a critical stage of their condition, whereby Article 8 of the ECHR is more concerned on a person’s right to their private life.
In either application, you will need to demonstrate that the medical condition cannot be supported outside of the UK and the impact it would have to the person’s health if removed from the UK.
Periods of grant awarded on a discretionary leave application
In line with all other immigration policies, a person will be granted a period of 30 months in the UK. Further extensions will need to be applied and will need a period of 10 years prior an application for indefinite leave to remain can be applied for.
The Home Office have the powers to grant a longer period under the discretionary leave to remain route. In most cases, this would be based on your application, which may include a child’s best interest which must be given due consideration. Other factors are considered such as your length of residency, if the child was born in the UK, social impact report to name some of the evidences required.
Getting legal advice from a UK Immigration Lawyer
At ICS Legal, we value our clients and always put you first. We listen to you carefully, explaining how we will prepare your application and what merits the application will have including all risks associated to that.
By using our knowledge and experience, we prepare a good immigration application. We are passionate about providing successful outcomes on all our applications we submit including the legal advice we provide.
In doing this, we create and build a strong & long lasting relationships with our clients that are primarily built on trust.
We believe a good UK Immigration Lawyer is approachable, innovative and open, with your best interest at heart of what we do. For more information speak to an ICS Legal advisor today, by either completing our contact form by clicking here or calling our team on 0207 237 3388. As these matters are always complex, we ask that you complete our online form, by clicking here.
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