Application for Discretionary Leave to Remain

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
27 January 2012

The appeal was of a family member of an exempt diplomat who wished to remain in the UK to complete her studies and we assisted her in an application for Discretionary Leave to Remain.

This application was refused by the Home Office on the basis that the Appellant was seeking entry clearance for a purpose not covered by the Immigration Rules and therefore she had a limited human rights appeal under Article 8 of the ECHR. The Secretary of State failed to consider section 55 of the Border Citizenship & Immigration Act 2009 in the context of the Appellant’s current position. We also argued that in relation to proportionality the Home Office failed to balance the need of the Appellant as a person who is exempt from Immigration control to have continuity in education at a crucial time. We relied on the case of Thakur (PBS decision, common law fairness) and Bnagladesh [2001] UKUT 00151.

The Immigration Judge stated that this case essentially boils down to an assessment of proportionality. The Judge found that the Secretary of State missed the point of the application. The Appellant was simply asking for leave to remain outside the Rules for a limited period.

It appeared to the Immigration Judge that the Home Office looked at the application in an extraordinarily restrictive manner and the approach has been one of strict application of the law. The reviewing officer has not considered the fact that the Appellant was a child of a diplomat who was posted to the UK. No account has been taken of the fact that the child of a diplomat is entitled to enter the English education system. More fundamentally, the Appellant was at a crucial stage of her education and applying section 55 of the UK Border Act, it cannot be right to expect a child who has been in the British education system for four years to suddenly up sticks and try to fit her previous education into a different system.

The immigration Judge concluded this determination by stating that if common sense is to prevail a wider interpretation of the law is essential. The Appeal was allowed.