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Discretionary Leave To Remain

Discretionary Leave to Remain Under Article 8 ECHR

You are entitled to make an application for Discretionary Leave to Remain in the UK in accordance with Article 8 of the European Convention on Human Rights (ECHR) by contending that if you are removed from the United Kingdom, it will lead to the obligation under Article 8 of the ECHR and as such interference with your private and family life in the UK will be unreasonable. This Discretionary Leave to Remain is issued by the Secretary of State outside the Immigration Rules, relevantly considering cases of exceptional and compassionate situations so as to decide if discretion should be or not be observed while granting Discretional Leave to Remain to an individual.

Discretionary Leave Following Refusal of An Asylum Claim

The Home Office, UKBA has the right to grant the Individual another type of temporary leave to remain if he/she has claimed asylum in the United Kingdom but has not been recognized to be a refugee by the Home Office, this permission is termed discretionary leave to remain. The situation of the individual will determine the length of stay which is initially less than three years.

Discretionary Leave to Remain is granted to an individual only on selected situations by the Home Office. If an individual seeks a renewal of the Leave on expiry, his/her situation will be accessed by the Home Office before a decision to either grant or refuse the application is made; he/she is expected to however make this application or the permanent residence application with the DL application form.

Which Application Form Should Be Used To Apply For Discretionary Leave?

The individual should make use of the FLR (O) application form when making the initial application. He/she should make an application for extension using the same FLR (O) form. However, an application for Indefinite Leave to Remain (ILR) should be made with SET (O) Application Form.

An individual who was refused admittance under Asylum can make an application for extension of the discretionary leave with the DL Application Form. Also, the DL form should be used in applying for ILR in this case.

When Can A Person With Discretionary Leave Apply For Indefinite Leave To Remain (ILR)?

Only if an individual has resided in the United Kingdom for a minimum of six years under the Discretionary Leave to Remain category will he/she be permitted to apply for an Indefinite Leave to Remain (ILR). In a situation where you were refused asylum claim the ILR application is to be made with the DL Application Form but in another case the application will be made using the SET (O) Application Form.

Will You Get Right To Appeal If Your Discretionary Leave Application Is Refused By The Home Office?

If an individual's form FLR (O) application for discretional leave is refused he/she might be entitled to or not to make an appeal to the First-Tier Tribunal of the immigration and Asylum Chambers against the refusal.

An individual might be entitled to make an appeal if the decision of removal to be made by the Home Office, UKBA will be contrary to the obligation of the United Kingdom in accordance to the European Convention On Human Rights (ECHR) except the claim is established to be without basis by the Home Office.

The individual is however permitted to make an appeal against the refusal of an extension application under this category if the application for extension was made prior to the expiry of the leave to remain.

Discretionary Leave To Remain Frequently asked questions (FAQ)

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