The UK’s Immigration Rules allow numerous routes under which overseas nationals can apply for leave to remain. If, however, you aren’t eligible under any of these routes, there are certain circumstances in which it may still be appropriate for UK Visas and Immigration (UKVI) to grant you discretionary leave to remain in the UK.
In this guide, we explain the circumstances which may make you eligible to apply for discretionary leave to remain.
What is discretionary leave to remain?
Discretionary leave to remain is permission granted by UKVI outside of the Immigration Rules in accordance with Home Office policy. The Immigration Rules are intended to cover the vast majority of scenarios in which migrants will be granted leave on the basis of an entitlement to remain in the UK. However, there are a small number of policies that also recognise there may be certain individuals who do not meet the requirements of these Rules, but there are still exceptional or compassionate reasons for allowing them to stay.
It is against this background that discretionary leave can be considered by an UKVI caseworker in both asylum and non-asylum cases when a migrant is applying to stay in the UK, although this cannot be applied for from overseas. However, as this is only intended to cover exceptional and compassionate circumstances, it will only be used sparingly.
Discretionary leave must also not be granted where an individual qualifies for either asylum or humanitarian protection in the UK, or on the basis of their family or private life. There is a separate Home Office policy on the grant of leave to remain outside of the rules for Article 8 reasons based on exceptional circumstances for anyone who fails to meet the family and private life Immigration Rules. Article 8 of the European Convention on Human Rights (ECHR) refers to the right to respect for private and family life.
Additionally, there is a policy on Leave outside the Rules (LOTR) for non-Article 8 reasons. This policy, combined with the discretionary leave policy, covers the circumstances in which a migrant may be granted leave for exceptional (and non-family or private life) reasons.
What does discretionary leave to remain allow?
In the limited cases where an UKVI caseworker has deemed it appropriate to grant discretionary leave to remain, they must also consider whether to exercise discretion as to the length of leave to be granted. This must be decided on the individual facts, and while 30 months’ leave will generally be considered appropriate, leave may also be granted for shorter or longer periods, including indefinite leave in especially compelling circumstances.
The Home Office discretionary leave to remain policy objective is to maintain a firm, fair and efficient UK immigration system that usually requires those who do not meet the Immigration Rules to leave the UK, but also considers exceptional and compassionate circumstances that may justify leave on a discretionary basis. This is achieved by:
- providing a mechanism to cover the few cases where it would, at the time that leave is granted, be unjustifiably harsh to expect a person to leave or enforce their removal
- considering evidence relating to exceptional or compassionate circumstances raised as part of any protection claim to assess if a discretionary grant of leave is appropriate
- granting limited leave for not more than 30 months, unless compelling evidence justifies a longer period, and ensuring that those granted discretionary leave do not generally benefit from a faster route to settlement than those meeting the Immigration Rules
- requiring all migrants granted discretionary leave to pay the appropriate fee or meet any fees exemption to extend their leave if they show that they continue to meet the criteria
- being clear that settlement in the UK is a privilege, not an automatic right, and that it is generally appropriate for anyone wishing to stay permanently in the UK to complete a minimum period of continuous limited leave before being able to apply to settle.
UK discretionary leave to remain requirements
Given that discretionary leave, where appropriate, will be granted outside of the Immigration Rules, there are guiding policy principles, rather than strict eligibility criteria.
Under the policy’s key principles, it provides that discretionary leave to remain must not be granted to a migrant where they already qualify for leave, either under the Immigration Rules, or for LOTR or Article 8 (ECHR) reasons. Discretionary leave therefore only applies to those providing evidence of exceptional and compassionate circumstances, or where there are other compelling reasons for UKVI to grant leave on a discretionary basis.
It is not possible to cover all the circumstances in which discretionary leave may be appropriate, as this depends upon the totality of evidence before the UKVI caseworker tasked with making a decision. However, the following broad categories may apply:
- Medical cases: medical claims in discretionary leave cases will be considered in line with the guidance on medical claims under Articles 3 and 8 of the ECHR. Article 3 refers to a person’s right to freedom from torture, or inhuman or degrading treatment.
- Other cases where return would breach the ECHR: discretionary leave may be considered appropriate where the ECHR breach associated with returning to an individual’s country of origin would not warrant a grant of humanitarian protection, but where their return would instead result in a flagrant denial of the right in question in that country.
- Exceptional circumstances: a grant of discretionary leave may be appropriate after consideration under paragraph 353B of the Immigration Rules as to whether there are exceptional circumstances which mean that removal from the UK is no longer appropriate. This applies where consideration still needs to be given to outstanding further submissions, but also where outstanding further submissions and appeal rights have been exhausted, with the case subject to a review at the removals stage. This can include migrants who have spent a significant length of time in the UK for reasons beyond their control having claimed asylum, although such individuals are expected to provide clear evidence as to why they cannot leave the UK voluntarily.
- Modern slavery cases, including human trafficking: for migrants with a positive conclusive grounds decision whose outstanding claim for asylum or further submissions (based in a material part on a claim to a well-founded fear of re-trafficking or a real risk of serious harm due to re-trafficking) has not been finally determined prior to 30 January 2023, they should still be considered by UKVI for discretionary leave to remain. This will normally be granted in these circumstances on the grounds that their ‘stay in the UK is necessary’ to pursue their asylum claim or further submissions.
From 30 January 2023, victims of human trafficking and slavery who are conclusively recognised as such by the National Referral Mechanism (NRM) may now be eligible for temporary permission to stay based on criteria under the Nationality and Borders Act (NBA) 2022. As such, cases on or after this date (including those who received a positive conclusive grounds decision before 30 January 2023 but did not claim asylum or lodge further submissions until after, or vice versa) will instead be considered under the policy of Temporary Permission to Stay considerations for Victims of Human Trafficking or Slavery.
An individual will not normally qualify for temporary permission to stay solely by being identified as a victim of modern slavery or trafficking, where the criteria under the NBA includes enabling a person to co-operate in connection with a criminal investigation or proceedings in respect of the relevant exploitation. It also includes assisting the individual in their recovery from any physical and/or psychological harm, or to seek compensation.
How to apply for discretionary leave to remain
The way in which an application for discretionary leave to remain outside of the UK’s Immigration Rules is made will depend on the individual circumstances involved.
For example, in the context of a non-asylum medical case, applicants must submit an online application using Form ‘Application to extend stay in the UK: FLR(HRO)’. This is the form to extend stay in the UK for human rights claims, leave outside the rules and other routes not covered by other forms. In contrast, where Article 3 and Article 8 medical issues are raised by a claimant within the context of an outstanding asylum claim, these will be considered with that claim, where there will be no need to make a separate application. Where there is an ongoing asylum claim, the UKVI caseworker must consider any relevant medical issues in conjunction with that claim or as part of any further submissions raised.
Equally, migrants who make a human rights medical claim in response to enforcement action, for example, a deportation notice, do not need to submit an application form.
When it comes to other cases where return to the country of origin would breach the ECHR, in the context of non-asylum cases where the applicant is making a standalone human rights claim, they must do so using the FLR (FP) or FLR (HRO) application form. However, where there is an ongoing asylum claim, any other ECHR claims must again be considered by UKVI in conjunction with the asylum claim or as part of the further submissions.
How much does discretionary leave to remain cost?
Where an application is required, using either Form FLR (FP) or (HRO), the fee is £1,048. The applicant may also be liable to pay the immigration health surcharge.
How long does a discretionary leave to remain application take?
When deciding an application for discretionary leave to remain, it may take UKVI several months to make a decision, depending on the complexity of the circumstances involved and whether any further inquiries need to be raised. However, the migrant will usually be able to stay in the UK until a decision has been reached.
What if a discretionary leave to remain application is approved?
If an applicant is granted discretionary leave to remain, the type and length of leave will depend on the circumstances involved. However, discretionary leave will be granted with recourse to public funds in the UK, with no prohibition on work and a right to study.
Where an individual is granted an initial period of discretionary leave, this does not mean that they will be entitled to further leave or to settlement in the UK. A subsequent period of leave may be granted, providing that person continues to meet the relevant criteria set out in the published discretionary leave policy applicable at that time. Further, anyone granted discretionary leave to remain must normally have completed a continuous period of at least 120 months’ (10 years’) limited leave before being eligible to settle.
It is also worth noting that where discretionary leave is granted in the context of human trafficking, anyone granted leave on this basis will only usually be granted permission to stay in the UK until their asylum claim or further submissions has been finally determined. At this stage, their leave will either be varied to the new form of leave or curtailed.
Discretionary leave to remain application refused?
If a discretionary leave to remain application is refused, there may be a right of appeal. The migrant will be told if this is the case in their decision letter from UKVI. In these circumstances, expert advice from an immigration specialist should be sought immediately.
Alternative routes to discretionary leave to remain
As discretionary leave to remain is a concession that can be considered outside of the UK’s Immigration Rules, this is a fallback position in circumstances where an applicant does not otherwise qualify for leave to remain. As such, the only viable alternative to discretionary leave to remain is either LOTR for exceptional (non-family or private life) reasons or leave to remain for Article 8 reasons. Being granted leave for any one of these reasons will be relatively rare, where it is always best to seek expert advice prior to applying.
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Discretionary leave to remain FAQs
What is a discretionary leave to remain in the UK?
Discretionary leave to remain in the UK is permission granted by the Home Office to stay in the UK for exceptional and compassionate reasons, where an overseas national does not meet the requirements for leave under the UK’s Immigration Rules.
Is discretionary leave to remain the same as limited leave to remain?
Discretionary leave to remain is permission to stay in the UK granted outside of the Immigration Rules. If granted, this is usually on a limited leave to remain basis, until a minimum period of continuous limited leave has been met.
Is discretionary leave settled status?
Discretionary leave is not always indefinite like settled status. The length of leave granted in discretionary leave to remain cases will depend on the application facts. A grant of 30 months’ leave will generally be considered appropriate, although indefinite leave, or settlement, can be granted in especially compelling circumstances.
Last updated: 6 October 2023
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals