The UK immigration system provides many routes to allow individuals and their families to come to the UK to live, work, study, care for family members, and visit. Sometimes the circumstances of immigrants to the UK cannot be accommodated under the existing immigration routes, but there may be compelling reasons which mean the Government will use its discretion to allow them to stay; this is referred to as ‘discretionary leave’. In this article, we will discuss the circumstances which may lead to discretionary leave being granted, whether it is possible to extend/renew discretionary leave, why an application may be refused, and how to renew and how much it costs.
Discretionary leave (DL) is granted in a small number of asylum and non-asylum cases where it is not possible to apply under the immigration rules or under the ‘Leave outside the Rules’ (LOTR) for Article 8 reasons (the right to respect for private and family life). This means that if an immigrant is eligible under asylum, humanitarian protection, family or private life immigration routes, they do not need to apply for Discretionary Leave.
Discretionary Leave is only offered in exceptional or highly compelling circumstances and can only be granted by the Secretary of State. It is typically granted in the following cases:
Applications on the basis of medical need can be made by using Article 3 and/or Article 8 of the European Convention on Human Rights (ECHR). Article 3 refers to the right to ‘freedom from torture and inhuman or degrading treatment’ and requires that the applicant’s illness is at a critical stage (i.e. they are close to death), and that it “would amount to inhuman treatment to deprive them of the care which they are currently receiving and send them home unless there is care available there to enable them to live their final days with dignity”. Article 8 of the ECHR can also be linked to medical grounds (i.e. if removing the person risks the physical and mental health of the individual), but the Home Office will require that in order to pass the test of proportionality, other factors under this article will also need to apply.
Cases where return would breach the ECHR
DL may be granted by the Home Office if a potential ECHR breach associated with the return of the applicant “would not warrant a grant of humanitarian protection but where return would result in a flagrant denial of the right in question in the person’s country of origin”.
Other circumstances which may lead to Discretionary Leave
Other circumstances which may lead to DL being granted include:
Related Article: Read also ‘Discretionary Leave application following the refusal of an asylum claim’
Discretionary leave is typically granted for no more than 2.5 years, but the exact duration is based on the facts of the case. An individual given DL by the Home Office may be eligible to apply for permanent settlement after ten years of continuous residence in the UK.
While it may be possible to secure further DL, this should not be taken absolutely for granted, especially given the fact that this leave is by its nature, discretionary’, and because immigration policy regularly changes.
An application for DL must be made no more than 28 days before the current DL expires – failure to do so will mean the application is out of time. The case officer will take into account a range of factors when deciding whether to grant further DL based on the information provided in the extension and original applications, and the country report. The guidance on granting further leave states that extending DL may be considered and decided without the need for an interview, unless the case officer requires more information on which to make the final decision.
The key point for any person considering applying for further DL is they must satisfy the requirements for DL as of the date they apply. If your current circumstances are broadly the same as they were when you first applied, you should be eligible for further leave.
The application form for extending DL is completed online:
It is important to make sure you are completing the correct form for your circumstances.
The standard fee to extend discretionary leave to remain is currently set at £1,033.
If the circumstances which led to you being granted DL in the first place still apply at the time you wish to extend your stay in the UK, then you should have a strong chance of securing further discretionary leave. If the factors which led to you being granted DL no longer apply, or if you are concerned that you may be refused for another reason, then it is highly recommended that you seek the expertise of immigration Solicitors. They can prepare your application and recommend ways to resolve any potential problems which may put your case at risk if not managed carefully.
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