Discretionary Leave To Remain Entitlements

If you are having difficulty meeting the UK government’s requirements to stay in the country indefinitely, a good option to explore is to apply for discretionary leave to remain.

In this article, we are going to discuss some of the important considerations regarding discretionary leave to remain. This includes the old and new rules, article 8, discretionary leave to remain for children and discretionary leave to remain on medical grounds.

What is Discretionary Leave to Remain?

Discretionary Leave to remain is a form of permission to live in the UK, granted by the Home Office outside the immigration rules and meaning someone can live and work in the UK for a designated period of time.

Discretionary leave can only be applied for within the UK and is designed for people who can’t meet the requirements under Appendix FM and paragraph 276ADE of the Immigration Rules.

To apply for Discretionary Leave outside the Immigration Rules application form FLR (HRO) is used. An application for discretionary leave is intended to cover compelling, compassionate and exceptional circumstances. For this reason, applications are granted sparingly by the home office. There is no obligation for them to grant discretionary leave, therefore it is best to seek legal advice before submitting your application.

An asylum claimant who has been refused asylum and humanitarian protection but has leave granted will be issued with a Reasons for Refusal Letter. The RFRL will explain the reason for refusal and briefly explain why discretionary leave was granted.

Discretionary Leave Duration

The leave means that you can legally live in the UK for a set amount of time, normally for 30 months, but the period of leave can vary depending on the individual case. Although, prior to 9th July 2012, the Home Office often granted people 3 years of discretionary leave to remain.

Before your discretionary leave to remain expires, you will need to make an application to renew your leave. If your leave was granted before the new rules and you were given three years of discretionary leave to remain, then you can make a settlement application after completing 6 years of discretionary leave.

If you were granted discretionary leave to remain under the new rules in force from 9th July 2012, then you will be eligible to apply for indefinite leave to remain (ILR) after either 5 years or 10 years, depending upon which route to the settlement you are following. Typically this is two separate thirty-month periods for the 5-year partner/parent route or four for the 10-year permanent settlement route.

To apply to renew your discretionary leave to remain, you must complete the form FLR (HRO), but in the majority of cases, it is uncommon to be granted another 30 months. The initial discretionary leave granted is no guarantee of further extension.

However, if your situation has remained the same when it is time to renew, you could be given discretionary leave for a further two and a half years. In some instances, a longer length may be given if it would benefit the welfare of a child or children. It also must be ensured that those given discretionary leave don’t have an advantage over those who meet the Immigration rules with a faster route to settlement.

Discretionary Leave Restrictions

Once you have been granted discretionary leave, you can work and study in the UK. However, normally there is a restriction placed on the leave that you will have no recourse to public funds; in other words, you will not be entitled to claim benefits in the UK. Recently the immigration rules have changed slightly, and the Home Office does have the discretion to change this restriction if they consider there should not be such a condition.

There are no restrictions in place as such if you want to travel outside the UK. You can leave the UK temporarily and are given free movement to come and go as you wish. Still, if at some point in the future you apply for Indefinite Leave to Remain (ILR), there are restrictions on time spent out of the UK.  If the applicant has been absent from the UK for more than 6 months in one period or more than 18 months in total, the application should normally be refused. However, it may be appropriate to exercise discretion over excess absences in compelling or compassionate circumstances, for example where the applicant was prevented from returning to the UK through unavoidable circumstances

Discretionary Leave to Remain for Children

The Home Office and Secretary of State are obliged to take the best interests of children into account to safeguard and ensure their welfare when deciding on their immigration status. Typically the outcome is that the child will stay in the UK.

When an unaccompanied child applies for asylum or humanitarian protection and is refused or if they can’t return to their home country due to lack of suitable reception arrangements, they will be granted leave. This will be until they reach 17.5 years old or for 30th months, whichever is the shortest.

Unaccompanied children granted discretionary leave who have turned 18 by the time they apply for further leave are considered the same as an adult. Though they will no longer be eligible for further leave as an unaccompanied child, they are able to apply to extend on another route to extend their grant of leave if they so wish.

If a child is born in the UK to parents who both have discretionary leave to remain, they will be granted the same limited leave as their parents. If just one parent has discretionary leave, then the granted leave will depend on the other parent’s status.

Discretionary Leave to Remain on Medical Grounds

A person can attempt to obtain leave to remain on medical grounds based on Article 3 of the European Convention on Human Rights 1998. Article 3 states that ‘No one shall be subjected to torture or to inhuman or degrading treatment or
punishment’.

However, the threshold to meet article 3 is very high. To be granted compassionate permission to stay, the applicant will need to prove exceptional causes that prevent them from returning to their origin country for medical treatment. The applicant would need to provide evidence that there are substantial reasons to believe that they would suffer a genuine risk of serious and rapid decline in health or a significant reduction in life expectancy.

The other option for applying for leave to remain on medical grounds is based on Article 8 of the European Convention on Human Rights 1998. Article 8 concerns respect for a person’s private and family life. In this instance, you would need to show evidence of strong connections with family or community in the UK.

An example of discretionary leave to remain based on medical grounds is the case JA (Ivory Coast) & Anor v Secretary of State for the Home Department [2009]. JA, who needed medical treatment for AIDS, won the decision based on Article 8, ‘the private and family life she had built in the UK’ and Article 3, ‘Impossibility of securing treatment in the Ivory Coast’.

The Importance of Article 8

If you have established a family or private life in the UK, Article 8 is an important and beneficial section of the Human Rights Act 1998 to understand.

It states:

– Everyone has the right to respect for his private and family life, his home and his correspondence.

– There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

There is no specific list of documents to provide or guidance given to show you how to meet the guidelines of Article 8. But the more supplementary proof you can show that you have established private and family life in the UK, the more chance you have of your application being granted. Supporting documents such as bank statements, bills, and payslips will all help. Proof that you have ties to the community, your children attend local schools, the length of time you have been in the UK will all strengthen your application.

Modern Slavery and Trafficking

Another reason for eligibility for discretionary leave to remain is for victims of slavery or trafficking. Commonly this would be dependent on personal circumstances or if they were aiding police with their enquiries and seeking compensation. Usually, a person won’t be eligible for discretionary leave only because it has been determined they are a victim of trafficking or modern slavery, there must be compelling reasons.

Indefinite Leave to Remain (ILR)

Indefinite leave to remain, also known as permanent residency, is a type of settlement for a foreign national to stay in the UK without restrictions. It is also the route to British citizenship, which you are eligible to apply for after 12 months of receiving indefinite leave to remain.

Usually, a person will be able to apply for ILR after a continuous period of 5- or 10-years discretionary leave. If the discretionary leave was granted before July 2012, Indefinite leave to remain can be applied for after 6 years. The application form for settlement is SET (O) for those on the 5 or 10 years route or FLR (DL) for those who were granted leave prior to July 2012 and can apply after 6 years.

How Can Cartwright King Help?

Applying for Discretionary Leave to Remain can be complex and frustrating. Each case is decided on an individual basis, with the home office having no obligation to grant application. For this reason, attention to detail and expert knowledge of Immigration law is beneficial when making an application.

If you have any queries or seek legal advice, then please call one of our Immigration Solicitors, or email us using the contact form below