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What is Leave Outside the Rules in UK Immigration?

The UK’s immigration rules cater to a wide range of visa routes. In some exceptional cases, however, it is necessary to allow immigration on a discretionary basis outside of the normal rules. This is the purpose of “leave outside the rules” (LOTR). In this article, we will explain what is meant by LOTR, the reasons LOTR may be granted, the documents required when applying for LOTR, whether it is possible to gain indefinite leave to remain (ILR) with LOTR, and appeal rights.

What is Leave Outside the Rules (LOTR)?

Leave Outside the Rules (LOTR) allow the Home Office to grant permission to migrants where they would normally be refused, but there are compelling or exceptional circumstances. As such, Leave Outside the Rules provides Home Office caseworkers considering applications for leave the discretion to grant permission in limited circumstances.

The guidance document used by Home Office caseworkers to determine if and how they can use LOTR is “Leave outside the Immigration Rules Version 2.0”1. The guidance explains that when determining the outcome of family and private life cases, decision-makers will first check if the immigration rules are met. The guidance explains that when determining the outcome of family and private life cases, decision-makers will first check if the immigration rules are met.

If not, they will then go on to see if there are exceptional circumstances that might render refusal of the application a breach of ECHR Article 8. This might be the case if refusal would result in “unjustifiably harsh consequences for the applicant or their family”. As the guidance also explains, each application of this type has to be looked at by the Home Office based on its merits on a case-by-case basis, considering the individual circumstances of the applicant.

What is Leave Outside the Rules (LOTR) for British National Overseas (BNO)?

Leave Outside the Rules BNO was a right given to British nationals (overseas) (BNO) and their eligible family members, which meant they had until the deadline of 19th July 2021 to come to the UK under LOTR. Under the BNO leave outside the rules route, BNO status holders could come to the UK for up to 6 months. As this route has now closed, BNO status holders require a BNO visa to come to the UK.

Reasons to grant Leave Outside the Rules

There are several reasons to grant LOTR, including:

  1. ECHR Article 8 (leave outside the rules on the basis of family or private life)
  2. ECHR Article 3 (prohibition of torture and cruel, inhuman, and degrading treatment)
  3. Discretionary leave
  4. Other exceptional/compelling compassionate grounds

ECHR Article 8 (leave outside the rules on the basis of family or private life)

Where an applicant does not meet the requirements for a family visa, they may give permission to come to the UK under LOTR if the application invokes ECHR Article 8. When making a decision on a family visa application, the Home Office will first check if the main requirements are met (i.e. the financial, accommodation, and English language requirements). If one or more of these are not met, the rules provide discretion.

For example, if the financial requirement is not met, Appendix FM states that if there are exceptional circumstances that might render refusal of the application a breach of Article 8 of ECHR (e.g. if it might result in unjustifiably harsh consequences for the applicant, their partner or a relevant child), the Home Office case officer can use discretion.

ECHR Article 3 (prohibition of torture and cruel, inhuman, and degrading treatment)

The Home Office can use discretion if there is a reason to believe that the refusal of an applicant who needs medical treatment may be subject to inhuman treatment if they have to return to their home country.

Applications of this type require strong evidence that there is a high risk the individual would have a significant reduction in life expectancy due to the lack of appropriate medical treatment in their home country.

Discretionary leave

Discretionary leave applies where there is strong evidence of exceptional, compassionate circumstances or other compelling reasons to grant leave on a discretionary basis. Discretionary leave may be applied in:

  • medical cases (asylum and non-asylum cases)
  • where return would breach the ECHR
  • exceptional circumstances
  • modern slavery cases (not including trafficking)

Other exceptional/compelling compassionate grounds

If the immigration rules are not met, and none of the above discretionary or ECHR Article 3 or 8 reasons can be used, applicants may still be able to rely on exceptional or compelling compassionate grounds; compassionate grounds meaning:

  • emergency or unexpected events
  • a crisis, disaster, or accident that could not have been anticipated

The immigration guidance states that LOTR will not be granted in such situations where it is reasonable to expect the applicant to leave the UK despite such factors.

LOTR applications can be used for any application type and can include factors in the UK or overseas.

There are several ways to apply for leave outside of the immigration rules or using discretionary leave. An immigration solicitor can explain the best route to use and maximise your chance of making a successful application. Speak to our immigration lawyers for a free telephone consultation on 020 3744 2797 or email us info@reissedwards.co.uk

Required documents for Leave Outside the Rules

When applying for LOTR, you will be asked to provide certain documents to prove your claim. Here we will focus on the documents required if you are relying on exceptional/compelling, compassionate grounds. The immigration rules state that you must provide evidence of the reasons you need to stay in the UK and for how long. Documents may include:

  • a letter showing the date of a funeral you are to attend
  • a request to provide evidence in an inquiry
  • medical evidence from a medical practitioner who is qualified in the appropriate field. This must include details of the circumstances and why a period of leave on compelling, compassionate grounds if required

It is advisable to request advice from an immigration solicitor before submitting your application, as the Home Office requires clear and robust evidence that the LOTR should be granted.

Leave Outside the Rules Conditions

A LOTR visa is granted for a single short period of time for the reasons outlined in the application. LOTR may be granted for up to 30 months, but in most cases, this will be up to 6 months. If a longer period is needed, it is up to the applicant to justify why this is needed.

If your LOTR visa is granted, you will normally only be permitted to stay for the specific purpose stated in your application. Those with a LOTR visa are typically not permitted to work, study, or claim public funds while in the UK. As the Home Office’s leave outside the immigration rules guidance states, any deviation from this policy happens rarely and only where there is enough evidence to prove that such conditions do not apply.

Can Leave Outside the Rules lead to ILR?

Yes, it is possible for an applicant to gain Indefinite Leave to Remain (ILR) rather than limited leave to remain, using LOTR. The immigration guidance explains that applicants who wish to apply for ILR outside of the immigration rules need to provide evidence as to why they should be given indefinite rather than limited leave to remain. This is normally ever granted in the most exceptional circumstances, such as in the case of a terminal illness.

Leave Outside the Rule Appeal Rights

LOTR applicants only have appeal rights where they have made a human rights claim. Where a human rights claim was not considered and refused by the Home Office, applicants do not have a right to appeal against the decision or an administrative review of the decision.

If your LOTR application is refused, it is important to seek advice from an immigration solicitor who can assess the reason for refusal and explain the options available to you. Speak to our immigration lawyers for a free telephone consultation on 020 3744 2797 or email us info@reissedwards.co.uk

How can Reiss Edwards help?

Reiss Edwards specialise in all forms of immigration, including family and private life applications. We understand the various LOTR and discretionary leave options and can advise the best route for your needs. Our immigration Solicitors can:

  • Explain the options available to you
  • Recommend the best LOTR or discretionary leave option for your needs
  • Apply to the Home Office on your behalf
  • Review and submit all of the evidence for your application
  • Liaise with the Home Office
  • Respond to a refusal of your LOTR or discretionary leave application

Speak to our immigration lawyers for a free telephone consultation on 020 3744 2797 or email us info@reissedwards.co.uk

References

1GOV.UK: LOTR guidance documents used by caseworkers

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