Discretionary Leave to Remain

Get in touch for expert advice

What is discretionary leave to remain?

There are Home Office policies that recognise that some individual might not meet the requirements of the immigration rules but nevertheless there are exceptional and/or compassionate reasons for allowing them to remain in the UK.

Discretionary leave to remain was introduced alongside humanitarian protection provisions in April 2003 to replace exceptional leave to remain which was initially used to grant leave for Article 8 reasons where removal would breach the obligations under Article 8 of the European Convention of Human Rights, the right of private and family life.

Following the introduction of the Family and Private Life Rules in July 2012 discretionary leave no longer was granted and as of 6 April 2013 the policy of granting discretionary leave to remain is now has to be considered with and in compliance with the immigration rules and not under the discretionary leave to remain policy.

What is the purpose of the discretionary leave to remain policy?

The purpose is to take into account exceptional and compassionate individual circumstances which might grant them leave to remain.

How long is the period of grant?

It will be for no more than 30 months unless there is compelling evidence to justify a longer period.

What kind of reasons can justify the grant of discretionary leave to remain?

1. It will not be granted to those who qualify for leave to remain under the immigration rules or for leave outside the rules for Article 8 reasons. It will only be granted for those who provide exceptional compassionate circumstances or where there are compelling reasons to grant it.
2. It applies to asylum and non-asylum cases. Non-asylum medical cases can be considered based on human rights grounds for medical reasons outside the rules. Article 3 and Article 8 medical issues raised by an applicant with an outstanding asylum claim will be considered with that claim and therefore there is no need to make a separate application.
3. Non-asylum cases making a stand-alone Human Rights claim must be done in an application form FLR (FP) or FLR (HRO)application form.

When you cannot get discretionary leave to remain?

Discretionary leave will not be granted if you already have permission to remain in the UK or if you had your asylum claim declared inadmissible or you have exhausted your rights of appeal, following the refusal of an asylum. It can also be refused under Part 9 of the immigration rules (general grounds for refusal). It can also be refused if you are subject to deportation proceedings.

What is the route to settlement?

From July 2012 discretionary leave to remain is usually granted for 30 months under the ten-year route to settlement which means the applicant can apply for indefinite leave to remain after completing ten years lawful residence.

When can I apply for an extension?

You can apply for an extension of your discretionary leave to remain if the circumstances will justify the grant of leave. However, if your circumstances have changed in such a way that you will fit within the rules you will be better off making an application under the immigration rules.

What happens to children who are born to parents who have discretionary leave to remain?

Children born in the UK to parents who have discretionary leave to remain, but are not British citizens are not born British. Instead, they will be granted leave in line with their parents.

Danielle invites you to take a look at her blog, where you will see the diverse range of clients that she has helped.

If you have any questions about the process or would like to apply for a scale up visa please contact Danielle or call on 020 7267 4133. Danielle will only charge you for the first consultation if you decide to become her client and if she can assist you.