The Secretary of State of the home department (SSHD) has the power to grant leave on a discretionary basis both within and outside of the immigration rules. Where Discretionary leave is granted outside the Rules SSHD uses his residual discretion under the Immigration Act 1971. Discretionary Leave is a form of leave to remain that is granted outside the Immigration Rules in accordance with this policy. Applications for Discretionary leave cannot be made from outside the UK.
Discretionary leave is not granted where a person qualifies for asylum or humanitarian protection or for family or private life reasons.
Application in respect of children and those with children
Section 55 of the Borders, Citizenship and Immigration Act 2009 places an obligation on the Secretary of State to take account of the need to safeguard and promote the welfare of children in the UK when carrying out immigration, asylum and nationality functions.
In practice, this requires a consideration to be made of the best interests of the child in decisions that have an impact on that child. This is particularly important where the decision may result in the child having to leave the UK, where there are obvious factors that adversely affect the child, or where a parent caring for the child asks us to take particular circumstances into account.
Medical cases
This category applies to both asylum and non-asylum cases. Where there is an ongoing asylum claim, caseworkers consider any relevant medical issues in conjunction with that claim or as part of any further submissions raised.
Other cases where the return would breach the ECHR
This applies to asylum and non-asylum cases. Discretionary leave may be appropriate where the ECHR breach associated with return would not warrant a grant of humanitarian protection but where the return would result in a denial of the right in question in the person’s country of origin. For guidance on the consideration of other ECHR claims, see the Asylum Instruction on Considering Human Rights. It will be rare for the return to breach another article of the ECHR in this way without also breaching Article 3.
Exceptional circumstances
This applies to asylum and non-asylum cases where there are outstanding further submissions to be considered, but also where there are no outstanding further submissions, appeal rights are exhausted, and the case is subject to a review at the removals stage. This may include those who have spent a significant period of time in the UK for reasons beyond their control after having claimed asylum, though such individuals are expected to provide evidence as to why they cannot leave voluntarily.
Modern Slavery cases (including trafficking)
Victims of slavery and forced labour who are conclusively recognised as such by the National Referral Mechanism (NRM) may be eligible for DL based on the same criteria of personal circumstances, helping police with enquires and pursuing compensation as victims of human trafficking, and this provision applies across the UK. A person will not normally qualify for DL solely because they have been identified as a victim of modern slavery or trafficking – there must be compelling reasons based on their individual circumstances to justify a grant of DL where they do not qualify for other leave such as asylum or humanitarian protection
Unaccompanied asylum-seeking children
Where an unaccompanied child applies for asylum and qualify for asylum, Human Protection, or leave to remain on the basis of family or private life under Appendix FM or paragraph 276ADE(1) of the Immigration Rules (or LTR for Article 8 reasons) and then Discretionary leave on any other basis.
Other cases
This applies to asylum cases only. There are likely to be very few other cases in which it would be appropriate to grant Discretionary leave to a failed asylum seeker. However, it is not possible to anticipate every eventuality that may arise, so there remains scope to grant DL where individual circumstances, although not falling within the broad categories listed above, are so compelling that it is considered appropriate to grant leave.
Discretionary leave to remain 6 years route (application made before 9 July 2012)
A person granted discretionary leave before 9 July 2012 can apply for further discretionary leave on the same basis that would have applied previously. This means, for example, that a person granted three years’ discretionary leave before that date may apply for a further period of three years, and if granted, may after six years of discretionary leave, apply for settlement.
Discretionary leave to remain 10 years route
If you were granted discretionary leave for 30 months and the leave was granted outside the Immigration Rules due to compelling and compassionate circumstances of the applicant, an application for ILR can be made once the applicant has spent 10 years in the UK under this category. Most applicants will be able to apply for ILR earlier under the 10 years long residence category as they would normally complete 10 years continuous and lawful residence earlier than 10 years if they are able to combine their previous leave towards 10 years long residence.
Same day visa service for extension and settlement
A person granted discretionary leave outside the immigration rules can apply for same day service on all visa premium service centres across the UK for extension and settlement. We can help to prepare and represent your application for fast-track processing. To book an appointment or to discuss your application feel free to call 07776569777 or email us at enquiries@connaughtlaw.com
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