The UK’s Immigration Rules are used to regulate permission to enter and remain in the UK of those subject to immigration control. To be eligible to come to or stay in the UK, an individual must show their Home Office application that they satisfy the criteria under the relevant immigration route, however there are limited circumstances in which leave may be granted outside the rules.
‘Leave outside the rules’ refers to the discretion afforded to Home Office caseworkers to decide in favour of an immigration application, despite the applicant not meeting the immigration criteria as stated under the Immigration Rules.
What is leave outside the rules?
The Immigration Rules in the UK are extensive, providing for the vast majority of non-UK residents wishing to enter or remain in the UK. However, even where someone doesn’t meet the requirements of the rules there may, nonetheless, be exceptional and/or compassionate reasons for justifying a grant of leave.
In some cases, there are concessions built into the rules that allow Home Office caseworkers to exercise their discretion to grant leave in exceptional circumstances. In other more limited cases, leave may be exceptionally granted outside the rules.
Leave outside the rules, otherwise known as LOTR, is the term used to cover all types of permission granted otherwise than in accordance with the normal rules and requirements. LOTR can apply to decisions around entry clearance, leave to remain and indefinite leave to remain applications on a number of different, albeit limited, discretionary grounds.
The objective of the small number of Home Office LOTR policies is to maintain a firm, efficient and fair immigration system that generally requires those who do not meet the rules to leave the UK or be refused entry, but carefully considers exceptional and compassionate individual circumstances that may justify leave on a discretionary basis.
What does leave outside the rules allow?
Leave outside the rules will allow a successful applicant to come to the UK or stay in the UK, even though they don’t qualify under one of the usual immigration routes.
The nature and extent of that permission will depend on the basis upon which leave is granted. In some cases, the individual will not be permitted to work, study or claim public funds during their stay in the UK, whilst in other instances, the individual may have recourse to public funds, no prohibition on work and be able to enter higher education.
Leave outside the rules will usually only be for a limited period of time, to reflect the individual circumstances of the application, and rarely no more than 30 months. It’s possible for further leave to be granted outside the rules, but only where there’s compelling evidence justifying a longer period, and ensuring that those granted LOTR generally don’t benefit from a faster route to settlement than those who qualify under the rules.
Indefinite leave to enter or remain can also be granted outside the rules, where the grounds are so exceptional that they warrant it, although such cases are likely to be extremely rare.
Different types of leave outside the rules
Not all leave outside the Immigration Rules is granted for the same reason and discretion can be applied in various different ways depending on the applicant’s circumstances, including:
- Family and private life reasons
- Discretionary leave, for example, for medical matters
- On other compelling compassionate grounds.
Family and private life
Where an application engages Article 8 of the European Convention on Human Rights (ECHR), ie; the right to respect for private and family life, leave may be granted outside the normal rules for people who cannot meet the usual requirements for a family visa.
The case worker will first decide if the requirements for a family visa are met. These typically include a relationship, financial, accommodation and English language requirement, although there are certain codified exceptions to some of these requirements. This could include, for example, where there are insurmountable obstacles to family life with a partner outside of the UK, or it would breach the applicants’ human rights to stop them coming to the UK.
In cases where the application doesn’t fall within any of the defined exceptions under the rules, the case worker can then go on to consider if there are exceptional circumstances that would render any refusal a breach of Article 8 because it would result in unjustifiably harsh consequences for the applicant or their family.
Each application will be considered on its own individual merits and on a case-by-case basis, including things like the nature and extent of the family relationships involved and any serious cultural barriers to relocation overseas, although the best interests of any relevant child affected by the decision will be a primary consideration.
Strictly speaking, in cases involving family life, the revised rules now include a complete framework of any Article 8 decision-making, bringing previous LOTR concessions within the rules. However, in respect of applications considered solely on grounds of private life in the UK — where the basis of the application is the person’s integration and ties to the UK — and the applicant does not otherwise meet those rules, there remains a residual discretion in exceptional circumstances to grant leave outside the rules on Article 8 grounds.
Discretionary leave applies to applicants who are able to provide evidence of exceptional compassionate circumstances or where there are other compelling reasons justifying a grant of leave on a discretionary basis. This applies other than where a person qualifies for asylum or humanitarian protection, for family or private life reasons or they qualify for leave outside the rules for Article 8 reasons.
Leave outside the rules under the discretionary leave policy can apply in both asylum and non-asylum cases applying from within the UK, although it cannot be applied for from abroad.
In theory, there are various circumstances in which discretionary leave may be considered, although the two main categories are human rights grounds for medical reasons and modern slavery, including human trafficking.
A human rights claim based on medical grounds relies predominantly on Article 3, ie; the prohibition against inhuman or degrading treatment. If requiring an individual to leave the UK would breach their human rights due to a serious medical condition, leave may be granted outside the rules, although the threshold for medical cases under Article 3 is very high.
To succeed, there must be substantial grounds for believing that the applicant would be exposed to a very real risk of being subject to inhuman treatment, having regard to the disparity between medical treatment received in the UK and that which is available in the proposed country of return. This means the applicant must provide evidence capable of demonstrating that they would most likely suffer a serious, quick and irreversible decline in their state of health, with intense suffering or a significant reduction in life expectancy, because of the absence of appropriate medical treatment or lack of access to such treatment.
Victims of slavery who are conclusively recognised as such by the National Referral Mechanism (NRM) may be eligible for discretionary leave. However, a person will not normally qualify for discretionary leave solely because they’ve been identified as a victim.
There must be reasons based on the applicant’s individual circumstances to justify a grant of leave. This could be where there’s a significant and real risk in light of objective evidence that the person may be re-trafficked or become a victim of modern slavery again or, if returned home, the person would face harm from those who first brought them to the UK or exploited them in their home country. An applicant may also qualify if leave is necessary for them to pursue compensation through the courts or to help the police with their enquiries.
Compelling compassionate grounds
In cases where the Immigration Rules are not met, and there are no exceptional circumstances that would justify a grant of leave under either Article 8, Article 3 medical or discretionary leave grounds, there may be other factors that when taken into account along with the compelling compassionate grounds raised, would warrant a grant of leave outside the rules.
This is essentially a miscellaneous category for an applicant who cannot apply on any other basis outside the rules. If the Home Office makes a decision to exercise its’ discretion to grant leave outside the rules on compelling compassionate grounds, this will be based other than leave on family and private life, medial or protection grounds. This means that compelling compassionate factors can arise in any application type.
Leave outside the rules on compelling compassionate factors is, broadly speaking, where a refusal of entry clearance or leave to remain in the UK would result in unjustifiably harsh consequences for the applicant or a family member, but which do not render refusal a breach of Article 8, Article 3, refugee convention or other obligations.
These exceptional factors could include:
- an emergency or unexpected event
- a crisis, disaster or accident that could not have been anticipated.
Compelling compassionate factors, in the UK or overseas, can be raised in a LOTR application, where something has happened, such as a personal tragedy, and a specific event is to take place or action needs to be taken in the UK as a result, but which does not in itself render any refusal an ECHR breach. An example might be where an applicant has suffered a bereavement and they request a period of stay to deal with their loss or to make funeral arrangements.
However, leave outside the rules will not be granted where it’s considered reasonable to still expect the applicant to leave the UK despite the existence of such factors.
Relying on leave outside the rules
The UK’s Immigration Rules have been written with clear objectives, where considerations of whether to grant leave outside the rules should not be used to undermine the objectives of the rules or create a form of parallel regime for those who do not meet them. In most LOTR cases, discretion is used sparingly, and only where factors raised in an application mean it would not be proportionate to expect the person to remain outside of the UK or to leave the UK.
In practice, this means that applications for leave outside the rules have high refusal rates, where the applicant is often required to meet criteria no less prescriptive than those found within the rules. However, an application may be successful where there are particularly compelling circumstances that would justify a grant of leave, provided sufficient evidence is provided in support and all factors are bought to the attention of the Home Office.
The importance of securing expert legal assistance from an immigration specialist in LOTR cases cannot be underestimated, where detailed representations, supported by relevant case law, can provide an applicant with the best possible chance of success.
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 an application or a grant of Leave Outside The Rules, contact us.
Leave Outside The Rules FAQs
What is LOTR immigration?
LOTR immigration refers to ‘Leave outside the Rules’. This is where the Home Office can exercise a residual discretion outside the UK’s Immigration Rules to grant a period of leave, even though the applicant doesn’t qualify within the Rules.
What is leave outside the rules BNO?
British nationals (overseas) and family members had until 19 July 2021 to enter the UK under ‘leave outside the rules’, allowing them to seek entry at the UK border for up to 6 months. They now need a BNO visa.
What is ILR outside rules?
ILR outside the rules refers to the grant of indefinite leave to remain for an applicant who doesn’t meet the normal requirements under the rules, but there are exceptional grounds that still warrant a grant of leave.
How long can I stay outside the UK with leave to remain?
Under the Immigration Rules there are maximum periods of time someone is allowed to be outside the UK without losing their permission to return, eg, indefinite leave will be lost if absent from the UK for more than 2 years.
Last updated: 2 August 2021