Discretionary Leave to Remain
Discretionary Leave to Remain Applications
What Is Discretionary Leave to Remain?
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. This can only be approved by the Secretary of State.
A person can apply for discretionary leave to remain via Article 8 of the European Convention on Human Rights (ECHR), through the argument that his or her removal from the UK will result in a breach of the obligation.
It can only be applied for within the UK and not abroad. The application is intended to cover compassionate and exceptional circumstances and should be used sparingly. It is best for you to seek advice before you make an application; our experts have vast experience in getting various people leave to remain under this category.
A person can leave the UK at any time under Discretionary Leave to Remain as there are no travel restrictions.
For an initial application for discretionary leave, the FLR (O) application form is required.
How Many Years is Discretionary Leave?
The period of leave granted may not be same in all the cases and 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.
When a person is granted DL initially, this does not always mean a person is entitled to further leave or settlement. Subsequent leave could be granted if the applicant continues to meet the criteria in the current policy.
Discretionary Leave to Remain Requirements & Eligibility
Some of the circumstances on the basis of which discretionary leave can be granted are as follows:
- 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.
- Unless the gravity of the circumstances warrant it, 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. These are subdivided as follows:
- You have lived continuously in the UK for at least 20 years
- 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
- You are aged 18 years or above but under 25 years and have spent at least half of your life living continuously in the UK
- 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 your integration into the country to which you would have to go if required to leave the UK.
Extension of Discretionary Leave to Remain
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 to Remain for Children
The circumstances of any children living in the UK are generally the main grounds for exercising the discretion, as the Home Office have to consider the best interests of the children and it is considered a bounding duty to take the welfare of the children into consideration.
Children who come to the UK unaccompanied will be granted discretionary leave to remain until they are 17 (if the Home Office accepts their age). An extension can be applied for before the expiry of discretionary leave.
A child can be granted discretionary leave as a minor if their parents are granted discretionary leave. This is usually granted for the same length of time as the parent.
Discretionary Leave to Remain on Medical Grounds
Discretionary leave to remain can be granted if a person requires medical treatment which is not available in their home country. Recovery, improvement or stabilisation in an applicant’s medical condition as a result of treatment in the UK or the possibility of serious or fatal relapse if they are not permitted to stay in the UK is considered 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.
To meet the high threshold of Article 3, an applicant will be required to show exceptional circumstances that prevent their return and that there are compelling humanitarian considerations. Documentary evidence for this will always be required to be submitted for testing. This category is applicable to both asylum and non-asylum cases.
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 take into account the applicant’s:
- Character, conduct, and associations, including any criminal record and the nature of any offense of which the migrant concerned has been convicted.
- Compliance with any conditions attached to any previous grant of leave to enter or remain in the UK, as well as compliance with any conditions of temporary admission or immigration bail where applicable.
- The length of time spent in the UK for reasons beyond the migrant's control after the human rights or asylum claim has been submitted or refused. Note that this paragraph does not apply to submissions made overseas, or where the person is liable to deportation.