Discretionary Leave to Remain

What does Discretionary Leave to Remain mean?

Discretionary Leave to Remain (DLR) was first introduced in April 2003, alongside Humanitarian Protection (HP), to replace a category called Exceptional Leave to Remain (ELR). DLR is a special immigration status granted by the UK Home Office in exceptional cases where standard immigration rules do not apply. It is intended for individuals who do not meet the criteria for any other visa or immigration status, including asylum or humanitarian protection, but who have strong, compassionate, or exceptional reasons to remain in the UK.

Applications for Discretionary Leave must be made from within the UK. Each case is assessed individually, with the Home Office reviewing the unique circumstances to determine if refusing leave would violate human rights or result in an excessively harsh outcome.

DLR Changes & Other Routes

Over the years, changes to immigration rules have incorporated many scenarios previously covered by Discretionary Leave into specific visa categories, further limiting its use. Discretionary Leave will no longer be granted to individuals who qualify for asylum, humanitarian protection, or leave based on their family or private life in the UK.

Article 8 Human Rights

Initially, DLR was often used for cases where removing an individual from the UK would breach Article 8 of the European Convention on Human Rights (ECHR), which protects the right to private and family life.

On 9 July 2012, new "family and private life" rules were introduced in Appendix FM and Appendix Private Life of the Immigration Rules. These new rules covered many scenarios previously addressed by DLR. Therefore, DLR is no longer used for Article 8 cases if the applicant meets the new rules. Instead, individuals should apply directly under these specific immigration categories.

Other Changes

From April 6, 2013, unaccompanied asylum-seeking children transitioned from the Discretionary Leave to Remain (DLR) policy to specific immigration regulations. More recently, on January 30, 2023, cases involving victims of human trafficking or slavery have also moved to the Temporary Permission to Stay policy. This change has further restricted the situations where DLR can be applied.

When is Discretionary Leave to Remain Considered?

Discretionary Leave to Remain (DLR) is now a more limited option, applicable only in unique or complex cases where other immigration categories do not fit. Applicants must already be in the UK to be eligible for this route. DLR may be considered in circumstances such as medical needs, human rights issues, or exceptional situations. Examples of such cases include:

Medical Cases

Discretionary Leave to Remain can be granted on medical grounds under exceptional circumstances, particularly when significant health risks are associated with returning to one’s home country. Individuals qualify for discretionary leave on medical grounds by demonstrating that their health condition would lead to inhuman treatment if forced to return, fulfilling a high threshold for such claims.

Substantial documentary evidence showing severe health deterioration or critical illness is required to support a claim based on medical grounds. This could include medical reports, testimony from healthcare professionals, and evidence of the lack of adequate medical treatment in the home country. DLR may be granted to individuals who need to remain in the UK for medical reasons when no other immigration category applies:

• Applying on Medical Grounds: Those with medical needs can apply on human rights grounds if their situation falls outside standard immigration rules. The applicant must provide substantial documentary evidence showing severe health deterioration or critical illness that would be exacerbated by returning to their home country.
• Article 3 and 8 Considerations: Medical claims under the European Convention on Human Rights (ECHR) are evaluated as part of the broader immigration process, eliminating the need for a separate application.

Human Rights Cases (ECHR Breach)

DLR may be considered if returning an individual to their country of origin would violate their human rights under the ECHR:

• Making a Human Rights Claim: When applying for Discretionary Leave to Remain, the Home Office can evaluate whether returning an individual to their home country would violate their human rights.
• Considering All Claims Together: When other immigration claims are also being considered, human rights issues are assessed to ensure a comprehensive evaluation.
• Rare Use Cases: DLR applies when a return would severely deny fundamental rights, but not to the extent other protection statuses apply.

Family Life Considerations

Family life considerations are crucial in discretionary leave applications under Article 8 of the European Convention on Human Rights. This article emphasises the need for evidence of personal connections in the UK, such as relationships with spouses, partners, and children under 18.

When assessing family life, the Home Office considers relationships beyond marriage, including significant community and extended family ties. This comprehensive approach ensures that all relevant personal circumstances are taken into account.

Cases involving family life must demonstrate that the impact of removal would be unjustifiably harsh on the family members remaining in the UK. This includes the emotional and psychological effects on children and partners.

Exceptional Circumstances

In unique situations, DLR may be appropriate where other immigration routes are not suitable:

• Ongoing Submissions: This includes cases with outstanding submissions or that are under review during the removal process.
• Long-Term Residence in the UK: DLR may apply to individuals who have been in the UK for an extended period due to circumstances beyond their control, provided they can demonstrate why voluntary departure is not feasible.

Applications Involving Children

When considering Discretionary Leave to Remain (DLR) applications involving children or individuals with children, decision-makers must prioritize the welfare and best interests of the child. Key considerations include:

• Best Interests of the Child: Any decision affecting a child must assess their best interests as a primary consideration, particularly if it could lead to the child leaving the UK or facing adverse circumstances. When a child or a parent with a child is involved, and where Section 55 of the Borders, Citizenship and Immigration Act 2009 applies, Leave Outside the Rules (LOTR) or DLR may be considered for the child's welfare.
• Individual Circumstances: Decisions must consider any specific needs or concerns a parent or guardian raises.
• Length of Leave: The duration of a Deferred Legal Request (DLR) should be determined based on the specific circumstances of each case. While 30 months of leave is standard, shorter or longer periods may be considered, including Indefinite Leave to Remain (ILR) in compelling circumstances.

In deciding on discretionary leave, the Home Office must show that the child's best interests have been thoroughly considered in both the decision to grant leave and the duration of the leave.

Applying for Discretionary Leave to Remain

Discretionary Leave to Remain (DLR) is granted outside the standard immigration rules. If you have been advised to apply for it, you and your immigration lawyer have likely already explored all other possible routes. Your case would be considered under exceptional policies such as Leave Outside the Rules (LOTR) or Article 8 (ECHR) grounds.

The DLR application process is complex, as applicants must provide strong evidence of exceptional, compassionate, or compelling reasons for staying in the UK. Each application is unique and tailored to the individual's specific circumstances.

Before applying, you must prepare a meticulous application and supporting documentation that clearly outlines the evidence for your exceptional and compassionate circumstances and why the UKVI should consider your case. At QC Immigration, a key part of the application is preparing legal arguments and compelling evidence demonstrating to the UKVI caseworker why your circumstances meet the threshold for discretionary leave.

When ready to apply for discretionary leave, the application is made via the GOV.UK website. The specific form required depends on your circumstances. The application under DLR can be made under any visa route. For example:

• For Human Rights Claims: Use the FLR (HRO) form (Further Leave to Remain - Human Rights Other) if applying based on exceptional circumstances not covered by standard immigration rules.
• For Family and Private Life Claims: Use the FLR (FP) form (Further Leave to Remain - Family and Private Life) if the claim involves family or private life considerations under Article 8 of the European Convention on Human Rights (ECHR).
• For Other Claims: You may need to request discretion from the Home Office for other Visa categories such as Work, Business, Family or Indefinite Leave to Remain routes where you fall short of meeting specific requirements. In addition to completing the relevant application form for that category, legal arguments must be presented to justify the exercised discretion.

Application Fees

The fee for applying for Discretionary Leave to Remain (DLR) depends on the specific route you are applying under. Please refer to the UK visa fees list to understand the potential costs for your visa route.

Applicants must also pay the Immigration Health Surcharge (IHS), which is £1,035 per year for adults aged 18 or over and £776 per year for those under 18.

Processing Times

The processing time for discretionary leave to remain can range from several weeks to a year. This duration depends on the visa route, the complexity of your case, and the current workload of the service reviewing your application.

Duration and Conditions of Discretionary Leave

Being granted discretionary leave to remain allows you to live, work, and study in the UK without restrictions. You will also be able to access public funds, including state benefits.

The length of Discretionary Leave to Remain (DLR) is determined on a case-by-case basis, with UKVI considering the specific circumstances of each individual. The decision on the length of leave granted is always guided by the unique facts of the case and the evidence provided. However, the duration of DLR is designed to ensure that recipients do not obtain a faster route to settlement (Indefinite Leave to Remain) than those who meet the standard Immigration Rules.

• Standard Duration: DLR is typically granted for 30 months (2.5 years) or the typical duration on your Visa route.
• Shorter or Longer Periods: If the situation warrants it, leave may be shorter or longer than 30 months.
• Indefinite Leave: In especially compelling circumstances, indefinite leave to remain (ILR) may be granted immediately.

Discretionary Leave to Remain can be revoked if an individual is involved in criminal activities, poses a threat to national security, or is found to have obtained their leave through fraudulent means. In these situations, the Home Office may consider curtailing the leave, deporting the individual, or issuing Restricted Leave instead.

What Happens If Your Application Is Refused?

If your Discretionary Leave to Remain (DLR) application is refused, options may still be available. The refusal letter from UKVI will clearly outline the reasons for the decision, helping you understand where your application may not have met the required standards.

The decision letter will also provide information about your right to appeal, including the process and time frame for submitting an appeal—typically within 28 days. Acting swiftly and seeking expert legal advice is crucial to navigating the appeals process effectively.

Engaging a UK immigration lawyer from the outset can reduce the risk of a refusal by ensuring your application meets all legal requirements and is well-documented and presented correctly. If you do receive a refusal, an immigration lawyer can help you prepare for the UK visa appeal process, address the reasons for the refusal, and present your case in the most substantial way possible.

Indefinite Leave to Remain (ILR) for Discretionary Leave Holders

Discretionary Leave to Remain (DLR) can be a pathway to Indefinite Leave to Remain (ILR), allowing individuals to settle in the UK permanently. DLR holders may usually apply for ILR after 10 years of continuous residence in the UK or as prescribed in your UKVI Notice of Decision.

ILR Eligibility

• Continuous Residence Requirement: Applicants must demonstrate 10 years of uninterrupted residence in the UK or as prescribed in your UKVI Approval Letter. Time spent in prison does not count towards this requirement and may affect eligibility.
• Ongoing Grounds for Leave: Applicants need to show that the reasons for their initial Discretionary Leave still apply at the time of the ILR application.
• Timing of Application: Applications for ILR are typically submitted no more than 28 days before completing the qualifying residence period and certainly before the current Discretionary Leave expires.
• Comprehensive Documentation: Providing strong evidence to support the application is essential. This includes demonstrating continuous residence, compliance with visa conditions, and proof of ongoing exceptional circumstances.
• Expert Guidance: Consulting an immigration specialist can help navigate the complexities of the ILR process, increasing the likelihood of a successful application.

Pathway to British Citizenship

Once ILR is granted, successful applicants may become eligible to apply for British citizenship immediately or a year later, provided they meet the additional naturalisation requirements.

This refined version is more precise and more structured, ensuring the information is easy to understand while maintaining accuracy and professionalism.

Get Legal Advice For Discretionary Leave to Remain

When standard immigration rules do not apply, and no alternative visa routes are available, Discretionary Leave to Remain can provide a potential route for individuals facing exceptional or compassionate circumstances. However, navigating the complexities of discretionary leave applications requires thorough preparation and a deep understanding of immigration law.

The expert team at QC Immigration can assess all the circumstances, identify the best approach, and present compelling evidence to support your case. Whether exploring alternative visa routes or applying for DLR, seeking expert advice ensures your application is handled professionally and maximises your chances of a successful outcome.

Contact QC Immigration today to manage the entire process and secure the best possible result for your UK visa application.