Under discretionary leave to remain, you may be able to rely on exceptional or compassionate grounds to stay in the UK.
The following guide on discretionary leave to remain in the UK looks at what discretionary leave is and how long this can last, as well as who is eligible and on what basis, how to apply and whether indefinite leave to remain can be sought once any limited leave expires.
What is discretionary leave to remain?
As the name suggests, discretionary leave is not an automatic entitlement subject to meeting certain criteria, but rather is a way in which the Home Office can grant a period of leave to migrants outside of the UK’s Immigration Rules in exceptional and compassionate circumstances. This derives from the residual discretion given to the Secretary of State under the Immigration Act 1971. However, given that the UK offers various other immigration routes within the Rules, there is no obligation on the Home Office to grant discretionary leave, where this discretion is only ever exercised sparingly.
Discretionary leave will not be granted if a migrant qualifies for asylum or humanitarian protection under the Immigration Rules, or if they qualify for leave outside the Rules for Article 8 reasons, ie; on the basis of either family or private life. The policy objective behind discretionary leave is to maintain a firm, fair and efficient system that requires those who do not satisfy the rules to leave the UK, but still carefully considers evidence of exceptional and compassionate circumstances that are raised as part of a protection claim that may justify leave on a discretionary basis. This is achieved by providing a mechanism to cover those very few cases where it would, at the time that leave is granted by the Home Office, be unjustifiably harsh to expect that person to leave the UK or to enforce their removal.
However, once discretionary leave has been granted, the successful applicant will have recourse to public funds in the UK, with no prohibition on where they can work or study.
How long does discretionary leave last?
As discretionary leave is granted outside of the UK’s Immigration Rules, the length of limited leave granted will be determined on the individual facts of the case. However, in accordance with Home Office caseworker guidance, this should be no more 30 months, or 2.5 years, unless there is compelling evidence in any given case to justify a longer period.
To make the system fair, where most migrants will be required to meet various strict criteria under the Immigration Rules, any grant of discretionary leave must also ensure that anyone given permission to stay on this basis does not generally benefit from a quicker route to settlement in the UK than those who meet the Rules. This essentially means that, when considering an application, a caseworker will rarely extend the 30-month maximum guideline, unless there is very good reason to grant more than 2.5 years’ leave. This could be where there are especially exceptional compelling and/or compassionate reasons to grant leave for longer, or because it is deemed to be in the best interests of any child.
In even rarer cases, the Home Office may consider granting indefinite leave to remain, for example, where a child has a serious and chronic health condition which may not be able to be treated in their own country, or any country of return, and it is thought to be in their best interests to grant indefinite leave to provide greater certainty for the purposes of their continued treatment and/or mental wellbeing. However, where a decision is taken to grant indefinite leave to remain to a child, it does not follow that the parents will be granted the same. Instead, the Home Office is more likely to require the parents to complete the usual probationary period of continued residence before becoming eligible to apply for settlement themselves, unless they can show exceptional compelling and/or compassionate factors in their own right to warrant a departure from the standard 30-month grant of leave.
In some cases, where it is clear from the individual circumstances that the factors meriting a grant of discretionary leave will be short-lived, the Home Office may grant a much shorter period. For example, where a person qualifies for discretionary leave under the criteria relating to helping police with enquires, or pursuing compensation, in the context of modern slavery and human trafficking cases, the period of leave granted will depend on the facts of the individual case, but should normally be sufficient to cover the time that it is expected that the applicant will need to stay in the UK. Discretionary leave will usually be granted for at least 12 months, but not normally more than 30 months.
The Home Office may also refuse an application where the factors resulting in a grant of discretionary leave will be especially short-lived, but giving an undertaking not to remove the applicant, or have any expectation on them to voluntarily leave the UK, until the circumstances preventing returning to their own country have changed. Where it is considered that the applicant’s return will be possible within a period of 6 months, the application will normally be refused, but removal deferred until such time as it is possible.
Who is eligible for discretionary leave to remain?
There are no set eligibility criteria when it comes to discretionary leave, although there must be clear evidence of exceptional and compassionate circumstances, or evidence of other compelling reasons to be able to grant leave on this basis. As this route can only be considered if applying under the asylum, humanitarian protection, family or private life routes is not possible, where the Immigration Rules already cater for the majority of situations, discretionary leave will only be granted in a very small number of cases.
Given that discretionary leave will be considered on the merits of each case, outside of the UK’s Immigration Rules, it is not possible to cover all of the circumstances in which this type of leave may be granted. This will all depend on the totality of the available evidence in individual cases. However, possible categories could include the following:
Medical cases: medical issues can be raised in asylum and non-asylum cases, although migrants must apply for discretionary leave based on human rights grounds for any serious medical reasons outside of the Immigration Rules in the context of non-asylum cases, whilst medical issues raised in the context of an outstanding asylum claim will be considered by the Home Office with that claim, with no need for a separate application.
Other cases where return would breach the European Convention on Human Rights (ECHR): this again applies to asylum and non-asylum cases, and again a specific application must be made for discretionary leave based on human rights grounds for reasons outside the Immigration Rules in the context of non-asylum cases, whilst human rights issues raised in the context of an outstanding asylum claim will be considered by the Home Office with that claim. Discretionary leave may be granted where any ECHR breach associated with return to the applicant’s own country would not justify a grant of humanitarian protection, but would instead result in a flagrant denial of the particular right in question in their country of origin.
Exceptional circumstances: this too applies to asylum and non-asylum cases where, for example, a grant of discretionary leave may be given after a human rights or humanitarian protection claim has been refused or withdrawn, and any appeal of that claim is no longer pending, but further submissions amount to a fresh claim. This can include anyone who has spent a significant length of time in the UK for reasons that were beyond their control, having claimed asylum, though such applicants will be expected to provide clear evidence as to why they cannot voluntarily leave, and show exceptional circumstances which mean that removal from the UK is not appropriate.
Modern slavery cases: victims of slavery, including trafficking, who are recognised as such through the National Referral Mechanism (NRM) may be granted discretionary leave based on the same criteria of their personal circumstances, helping police with enquires and/or pursuing compensation. However, they will not normally qualify for leave solely because they have been identified by the NRM as a victim of modern slavery or trafficking. The relevant Competent Authority or Immigration Enforcement Competent Authority must have made a positive conclusive grounds decision that they are a victim of modern slavery ‘and’ leave must be necessary either owing to personal circumstances, or as victims helping police with their enquiries or pursuing compensation.
It is simply not possible to anticipate every eventuality where discretionary leave may be considered appropriate. There may be other individual circumstances, not falling within the broad categories listed above, that are so compelling that there is scope for discretionary leave. However, specialist advice should always be sought before making this type of application, where an applicant must be able to provide a detailed account, with clear evidence in support, to show exceptional and compassionate circumstances.
How to apply for discretionary leave to remain
Discretionary leave cannot be applied for from abroad, where the applicant must be in the UK to submit an application. The application will need to be made online, in most cases using online Form FLR(HRO): Application to extend stay in the UK.
As part of the application process, an applicant will be required to apply for a biometric immigration document, commonly known as a biometric residence permit. They may also need to pay a healthcare surcharge, known as the ‘immigration health surcharge’, in addition to their application fee, unless they are granted a fee waiver.
Importantly, in the context of failed asylum or humanitarian protection cases, discretionary leave should automatically be considered by Home Office caseworkers. Equally, in the context of modern slavery and human trafficking cases, as part of a ‘positive reasonable grounds’ decision letter from the relevant Competent Authority, the potential victim will be asked if they want to be assessed for discretionary leave following any ‘positive conclusive grounds’ decision from the NRM. The victim will not be required to complete an application form, or to pay a fee, for any initial consideration of discretionary leave on this basis.
Who qualifies for indefinite leave to remain after discretionary leave?
When a migrant is granted an initial period of discretionary leave, this does not necessarily mean that they will be entitled to further leave. Subsequent periods of leave may be granted, but only if the applicant continues to meet the relevant criteria as set out in the published policy on discretionary leave applicable at the time of the decision. Extensions of discretionary leave will be granted on the merits of each renewal application. In some cases, discretionary leave can even be curtailed if it comes to light that the reason(s) which led to the grant of leave no longer persists, for example, if any medical condition improves.
An individual should apply for further discretionary leave no more than 28 days prior to expiry of their existing grant of leave to stay longer in the UK. If they apply once their limited leave has run out, their application will be considered out of time. Applications for further discretionary leave must usually be made using online Form FLR(DL).
In relation to indefinite leave to remain, the Home Office guidance relating to the grant of discretionary leave makes it clear that settlement in the UK is a privilege and not an automatic right. As such, it is usually appropriate for migrants wanting to permanently stay in the UK to complete a continuous minimum period of limited leave before being able to apply for indefinite leave. In most cases, a migrant will not be eligible to apply for settlement until they have accrued a continuous period of leave of 120 months, a total of 10 years, normally made up of 4 separate 2.5 year periods of leave. Where an applicant meets the requirements for a grant of further discretionary leave, they will normally be given a maximum of 30 months limited leave, even if the net effect of this is that they become eligible to apply for further leave or settlement before that period of leave expires.
Where a migrant has held discretionary leave in the UK for a continuous period of 10 years and they continue to qualify, they should usually be granted settlement by the Home Office, unless there is evidence of any criminality or exclusion issues. However, there may be cases where it is clear that the basis for the continuing grant of discretionary leave is only temporary. As such, settlement should not normally be granted if the factors giving rise to the grant of discretionary leave will cease to apply within 12 months.
DavidsonMorris’ team of UK immigration lawyers are on hand to support with all types of Home Office and immigration applications. If you have a question about discretionary leave to remain, contact us.
Discretionary Leave to Remain FAQs
How many years is discretionary leave?
Discretionary leave is granted in exceptional and compassionate circumstances, on a case-by-case basis, so the length of leave granted will be adjusted to suit the individual situation. However, in accordance with Home Office guidance, this will usually be 30 months.
Who is eligible for discretionary leave to remain?
There are no set eligibility criteria when it comes to discretionary leave, although there must be clear evidence of exceptional and compassionate circumstances, or evidence of other compelling reasons to grant leave on a discretionary basis.
How long I can stay outside UK with discretionary leave to remain?
In most cases, a migrant with discretionary leave to remain is able to leave the UK and re-enter freely at any time. However, leave may be curtailed if they were granted leave on medical grounds but are fit to travel.
Last updated: 13 December 2022