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Discretionary Leave to Remain

Do you need to apply for a Discretionary Leave to Remain?
Speak to our experts to find out about our fast, friendly and affordable service

Discretionary Leave to Remain in the UK is granted to people who are able to prove to the Home Office that their circumstances are compelling on compassionate grounds or are such that they can be granted leave outside the Immigration Rules.

It is best for you to seek advice before you make an application as our experts have vast experience in getting various people leave to remain under this category.

Some of the circumstances on the basis of which discretionary leave can be granted are as follows:

  1. There are no provisions in the Immigration Rules but there are circumstances in your case which convince the Home Office that you should be granted leave to remain in the UK. It should be noted that if you qualify for asylum, Humanitarian Protection, or are able to apply under another category then this should be done.
  2. Unless gravity of the circumstances warrant the provisions of Discretionary Leave are generally not invoked from 9 July 2012 for Article 8 family or private life reasons under paragraph 276 ADE of the Immigration rules which are subdivided as following:
  • You have lived continuously in the UK for at least 20 years; or
  • Your child is under the age of 18 years and has lived continuously in the UK for at least 7 years and it would not be reasonable to expect the applicant to leave the UK; or
  • is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK; or
  • You are aged 18 years or above, have lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.

Period of Discretionary Leave to Remain

The period of leave granted may not be same in all the cases and it will vary depending on your specific circumstances. However, in general, discretionary leave is granted for 30 Months after 9 July 2012, leading to Indefinite Leave to Remain in 10 years. Before 9 July 2012, discretionary leave was granted for 3 years leading to Indefinite Leave to Remain in 6 years.

Extending Discretionary Leave to Remain in the UK and conditions

Extension for Discretionary Leave to Remain is generally granted if the circumstances of your initial grant have not changed. You may be allowed access to public funds and will generally be entitled to work.

Discretionary Leave for Children

Circumstances of the child living in the UK are generally the main grounds for exercising the discretion, as the Home Office have to consider the best interest of the children and it is considered a bounding duty to take the welfare of the children into consideration.

Article 8 and Article 3 Cases

If a person cannot return to their home country on the basis that they require medical support, which is not available in their home country, then they can apply for discretionary leave to remain in the United Kingdom.

Recovery, improvement or stabilisation in an applicant’s medical condition as a result of treatment in the UK and the possibility of serious or fatal relapse, if not permitted staying the UK will tantamount to inhuman treatment violating the provisions of Article 3. However, it is still necessary to show evidence that the treatment is not available in your home country.

Article 3 demands that “whether the applicant’s illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity” from the case of N (FC) v SSHD [2005] UKHL31.

To meet the high Article 3 threshold, applicant will be required to show exceptional circumstances that prevent his/her return and that there are compelling humanitarian considerations, such as the applicant in his terminal stage and will have a fighting chance in the United Kingdom, without prospect of medical care or family support on return, however proof of these documents will always be required to be submitted for testing.

This category is also applicable to asylum and non-asylum cases.

Discretionary Leave may be appropriate, where the breach would not give rise to a grant of Humanitarian Protection. Where return would result in a flagrant denial of the right in question in the person’s country information guidance, in such cases reports will be required from place of origin of the person and documents will only be acceptable from credible sources in such cases.

Article 8 cases after 9 July 2012 will be considered under paragraph 276 ADE of the Immigration Rules.

Exceptional circumstances

Where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under paragraph 353 of these Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review, the decision maker will also have regard to the migrant's:

i. character, conduct, and associations including any criminal record and the nature of any offense of which the migrant concerned has been convicted;

ii. compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable;

iii. the length of time spent in the United Kingdom spent for reasons beyond the migrant's control after the human rights or asylum claim has been submitted or refused; in deciding whether there are exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate.

This paragraph does not apply to submissions made overseas.

This paragraph does not apply where the person is liable to deportation.

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Do you need to apply for a Discretionary Leave to Remain?
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We specialise exclusively in UK Immigration and Nationality Law. We are regulated by the Office of the Immigration Services Commissioner(OISC). We provide immigration services to clients from worldwide. Immigration law is complex and with the rules constantly changing we strongly recommend that you use specialists to support and represent you from the start. Call us now for an honest opinion of your case, possible costs and options.

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