Discretionary Leave to Remain in the UK
Discretionary Leave is used by the UK Home Office sparingly and it is granted only if a case falls within the limited categories in the circumstances where:
- There are no provisions in the Immigration Rules, however it is not granted to person qualifies for asylum, Humanitarian Protection, or where there is another category within the Immigration Rules under which they qualify.
- From 9 July 2012 Discretionary Leave is generally not granted for Article 8 family or private life reasons, unless gravity of the circumstances allow.
- Discretionary Leave should not normally be granted to EEA nationals (and their third-country National family members). See the link for EEA family permits on our website.
- Discretionary Leave may be granted in cases where there are exceptional circumstances to justify in applying discretion.
- The period of leave granted will vary depending on the basis on which the grant of Discretionary Leave.
- Those granted Discretionary Leave will have access to public funds and are entitled to work.
Discretion Leave for Children
Where the child is in the UK for a period of time then discretion is generally exercised based on the circumstances the child is living in, the UKBA is bound to take welfare of the children into consideration.
Article 8 and Article 3 Cases
The general principle applied to these cases is that a person cannot avoid return on the basis that they require medical, social or other form of assistance being provided in the UK. The improvement or stabilisation in an applicant’s medical condition resulting from treatment in the UK and the prospect of serious or fatal relapse on expulsion will not in themselves render expulsion inhuman treatment contrary to Article 3, however proof of these documents will always be required to be submitted to the UK Home Office.
The threshold set by Article 3 is therefore a high one. It is “whether the applicant’s illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity” from the case of N (FC) v SSHD  UKHL31. To meet the very high Article 3 threshold, therefore, an applicant will need to show exceptional circumstances that prevent return, namely that there are compelling humanitarian considerations, such as the applicant being in the final stages of a terminal illness without prospect of medical care or family support on return, however proof of these documents will always be required to be submitted to the UK Home Office.
- This category applies to asylum and non-asylum cases.
- Discretionary Leave may be appropriate where the breach would not give rise to a grant of Humanitarian Protection but where return would result in a flagrant denial of the right in question in the person’s country of origin in such cases reports will be required from place of origin of the person and documents will only be acceptable from credible sources in such cases.
A grant of Discretionary Leave may be appropriate in cases under Paragraph 353B of the Immigration Rules. This applies in cases where there are 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 the decision has also exhausted. UK Home Office carefully considers whether a grant of leave would now be appropriate which is based on the evidence provided to them.