What is Discretionary Leave to Remain in the UK

Discretionary Leave to Remain is available to some migrants in the UK under exceptional or compassionate circumstances. 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 explain the Discretionary Leave to Remain meaning, circumstances that may lead to discretionary leave being granted, whether it is possible to extend/renew discretionary leave, how to renew it, and how much it costs.

What is Discretionary Leave to Remain?

Discretionary Leave to Remain is granted in a small number of asylum and non-asylum cases where there are exceptional and compassionate circumstances. Applicants can only apply for Discretionary Leave to Remain within the UK.

This route can only be used if it is not possible to apply under the immigration rules or under the ‘Leave outside the Rules’ (LOTR) for Article 8 reasons (i.e. 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 should not apply for Discretionary Leave to Remain.

The Home Office allows Discretionary Leave to Remain in rare circumstances simply because the immigration rules cater for the majority of situations, but not all. The aim of the Discretionary Leave to Remain policy is to provide a way to allow leave where it would be “unjustifiably harsh” to expect a migrant in the UK to leave or enforce their removal.

Initial applications for Discretionary Leave to Remain are made using the Discretionary Leave to Remain in the UK application form FLR (O)¹.

Who can apply for Discretionary Leave to Remain?

A person may be able to apply for Discretionary Leave to Remain for a number of reasons, as follows:

Discretionary Leave to Remain on medical grounds

Applications on the basis of medical needs 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.

Exceptional circumstances

Under section 353b of the immigration rules, Discretionary Leave to Remain may be granted where there are exceptional circumstances that mean that removal from the United Kingdom is no longer appropriate. Factors such as character, conduct, compliance, and 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 will be taken into account.

Other circumstances

• Exclusion and criminality – If cancellation, cessation, or revocation of refugee status or humanitarian protection is being considered by the Home Office, in some cases, Discretionary Leave to Remain may be granted (if restricted leave does not apply). Granting Discretionary Leave to Remain where the individual has a criminal record is rare but may be granted in limited circumstances if they pose a low risk.
• Asylum seekers whose circumstances do not fit existing policy
• Unaccompanied asylum-seeking children
• Modern slavery/trafficking – there must be other compelling factors to be granted Discretionary Leave to Remain

Children of parents with Discretionary Leave to Remain

Children who are born in the UK to non-British parents who both have Discretionary Leave to Remain will normally receive limited leave to remain in the UK in line with their parents. The immigration rules also state that where only one parent has Discretionary Leave to Remain, the leave that the child receives will depend on the immigration status of the other parent.

There are several ways to apply for Discretionary Leave to Remain. 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 complete our enquiry form.

What you can do and cannot do with granted Discretionary Leave to Remain

There are several Discretionary Leave to Remain benefits. The main Discretionary Leave to Remain entitlements include the ability to:

• claim public funds (e.g. benefits)
• work without restriction
• study

Those with Discretionary Leave to Remain are not permitted to:

• acquire higher education student finance
• study in certain subjects without obtaining an Academic Technology Approval Scheme (ATAS) clearance and a certificate from the Counter-Proliferation Department of the Foreign and Commonwealth Office (FCO)

How Long is a Discretionary Leave to Remain Granted?

In general, Discretionary Leave to Remain is granted for no more than 30 months, but the exact duration is based on the facts of the case. An individual given Discretionary Leave to Remain 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 for 30 months each time, 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 Discretionary Leave to Remain must be made no more than 28 days before the current the Discretionary Leave to Remain 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 Discretionary Leave to Remain based on the information provided in the extension and original applications and the country report. The guidance on granting further leave states that extending Discretionary Leave to Remain 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.

Discretionary Leave to Remain fees

The standard fee to extend discretionary leave to remain is currently set at £1,033.

How to Extend a Discretionary Leave to Remain

We are often asked, “what should I apply for when my Discretionary Leave to Remain expires?”. It should be possible to further extend Discretionary Leave to Remain if your circumstances are as they were when you first gained permission under this category. In other words, the exceptional or compassionate circumstances that led to you being granted Discretionary Leave to Remain must still apply.

The Discretionary Leave to Remain in the UK application form for extensions are available online:

• Form FLR(DL) – to extend your stay if you were refused asylum but given DL
• Form FLR(HRO) - to extend your stay in the UK for human rights claims, leave outside the rules and other routes not covered by other forms

It is important to make sure you are completing the correct form for your circumstances.

Discretionary Leave to Remain travel restrictions

In most cases, a person with Discretionary Leave to Remain is able to leave the UK and re-enter freely at any time. The exception to this rule is where Discretionary Leave to Remain is only granted for 6 months or less. In this case, if the individual travels outside the UK, their period of limited leave may lapse.

Discretionary Leave to Remain to Indefinite Leave to Remain

Discretionary Leave to Remain can lead to ILR after 6 or 10 years of continuous residency in the UK.

Discretionary Leave to Remain 10-year route

Under the Discretionary Leave to Remain 10 year route, those with Discretionary Leave to Remain in the UK can apply for Indefinite Leave to Remain (settlement) if they:

• have lived in the UK continuously for 10 years or more and
• were first given Discretionary Leave from 9 July 2012

In most cases, this will be 4 separate periods of 30 months of Discretionary Leave to Remain.

Discretionary Leave to Remain 6-year route

It is also possible for a person with Discretionary Leave to Remain in the UK to apply for ILR after 6 continuous years of residence in the UK if they were first given Discretionary Leave on or before 8 July 2012.

How can Reiss Edwards help?

Reiss Edwards specialise in all aspects of immigration law, including applications for Leave Outside the Rules and Discretionary Leave to Remain in the UK. We can:

• Explain your options to remain in the UK
• Explain the discretionary leave to remain policy
• Check if you are eligible for Discretionary Leave to Remain
• Make a Discretionary Leave to Remain application on your behalf and of your family members
• Liaise with the Home Office on your behalf regarding your Discretionary Leave to Remain application
• Make a Discretionary Leave to Remain extension application
• Check your Discretionary Leave to Remain application
• Check and prepare your documents for your Discretionary Leave to Remain application
• Handle a refusal of a Discretionary Leave to Remain application

Speak to our immigration lawyers for a free telephone consultation on 020 3744 2797 or complete our enquiry form.

References

¹GOV.UK: Application form FLR (O)