Discretionary Leave to Remain UK - Know Requirements & Eligibility!

What Is Discretionary Leave to Remain?

Discretionary leave to remain in the UK is granted to people who are able to prove to the Home Office that their circumstances are compelling on compassionate grounds or are such that they can be granted leave outside the immigration rules. It does not mean that your circumstances must be unique.

A person can apply for discretionary leave to remain via Article 8 of the European Convention on Human Rights (ECHR), through the argument that his or her removal from the UK will result in a breach of the obligation, for example you are caring for a British citizen who is on their last leg of life. Discretionary leave to remain can also be granted in cases of Article 3 claims on the basis that - 

(a) There is no treatment available in your home country; 

(b) Eventhough the treatment is available it is not accessible; 

(c) If you are returned to your home country if will significantly impact length of your life for example you are 30 years old and if you are sent then you are likely to live until 10 years, however, if you stay in the UK you are likely to live upto 70 years of age. 

Such applications need medical expert evidence in support of your application for discretionary leave to remain.

Discretionary leave to remain are generally applications made within the UK, however, you can also lodge applications from outside the UK but the consideration threshold for such applications is very high. The application is intended to cover compassionate and exceptional circumstances and should be used sparingly. It is best for you to seek advice before you make an application; our lawyers experts have vast experience in getting various people leave to remain under this category, you can call us on 020234111261 to discuss your circumstances.

A person can leave the UK at any time under Discretionary Leave to Remain as there are no travel restrictions.

For an initial application for discretionary leave, the FLR (HRO) application form is required.

How Many Years is Discretionary Leave?

The period of leave granted may not be same in all the cases and will vary depending on your specific circumstances. However, in general, discretionary leave is granted for 30 Months after 9 July 2012, leading to Indefinite Leave to Remain in 10 years. Before 9 July 2012, discretionary leave was granted for 3 years leading to Indefinite Leave to Remain in 6 years.

When a person is granted DL initially, this does not always mean a person is entitled to further leave or settlement. Subsequent leave could be granted if the applicant continues to meet the criteria in the current policy.

Discretionary Leave to Remain Requirements & Eligibility

Some of the circumstances on the basis of which discretionary leave can be granted are as follows:

1. There are no provisions in the immigration rules but there are circumstances in your case which convince the Home Office that you should be granted leave to remain in the UK. It should be noted that if you qualify for asylum, humanitarian protection or are able to apply under another category, then this should be done.
2. Unless the gravity of the circumstances warrant it, the provisions of Discretionary Leave are generally not invoked from 9 July 2012 for Article 8 family or private life reasons under Appendix Private Life of the Immigration rules. These are subdivided as follows:

• You have lived continuously in the UK for at least 20 years
• Your child is under the age of 18 years and has lived continuously in the UK for at least 7 years, and it would not be reasonable to expect the applicant to leave the UK
• You are aged 18 years or above but under 25 years and have spent at least half of your life living continuously in the UK
• You are aged 18 years or above, have lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to your integration into the country to which you would have to go if required to leave the UK.

Extension of Discretionary Leave to Remain

Extension for Discretionary Leave to Remain is generally granted if the circumstances of your initial grant have not changed. You may be allowed access to public funds and will generally be entitled to work.

Discretionary Leave to Remain for Children

The circumstances of any children living in the UK are generally the main grounds for exercising the discretion, as the Home Office have to consider the best interests of the children and it is considered a bounding duty to take the welfare of the children into consideration. Children who come to the UK unaccompanied will be granted discretionary leave to remain until they are 17 (if the Home Office accepts their age). An extension can be applied for before the expiry of discretionary leave.

A child can be granted discretionary leave as a minor if their parents are granted discretionary leave. This is usually granted for the same length of time as the parent.

Discretionary Leave to Remain on Medical Grounds

Discretionary leave to remain can be granted if a person requires medical treatment which is not available in their home country. Recovery, improvement or stabilisation in an applicant’s medical condition as a result of treatment in the UK or the possibility of serious or fatal relapse if they are not permitted to stay in the UK is considered tantamount to inhuman treatment violating the provisions of Article 3. However, it is still necessary to show evidence that the treatment is not available in your home country.

To meet the high threshold of Article 3, an applicant will be required to show exceptional circumstances that prevent their return and that there are compelling humanitarian considerations. Documentary evidence for this will always be required to be submitted for testing. This category is applicable to both asylum and non-asylum cases.

Exceptional Circumstances

Exceptional circumstances is a term generally seen under application under Appendix FM, however, you can also be granted in circumstances which may be exceptional, however the application is not based under Appendix FM of the Immigration rules. 

Where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under paragraph 353 of these Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review, the decision maker will also take into account the applicant’s:

1. Character, conduct, and associations, including any criminal record and the nature of any offense of which the migrant concerned has been convicted.
2. Compliance with any conditions attached to any previous grant of leave to enter or remain in the UK, as well as compliance with any conditions of temporary admission or immigration bail where applicable.
3. The length of time spent in the UK for reasons beyond the migrant's control after the human rights or asylum claim has been submitted or refused. Note that this paragraph does not apply to submissions made overseas, or where the person is liable to deportation;
4. The extensive ties you have to the UK which include your extended family or private life ties which you have in the UK

How Can I Apply for Discretionary Leave to Remain?

In order to apply for a discretionary leave to remain you must completed an online form FLR (HRO), you must present evidece which is relevant to circumstances in your case for example - length of your stay in the UK, amount of family members you have in the UK, difficulties you will face if your application is refused or you are removed, evidence of your connections in the UK, support letters, medical reports, any children involved and anything which may impact your furture if you are required to leave the UK. Your circumstances must be presented in detail with all the relevant evidence to establish the facts in detail. 

Generally it depends on your circumstances whether you can apply for discretionary leave to remain or not. For example: if you are caring for a British citizen who needs 24X7 care and if there is no care availability from the council then you can request for discreationary leave. 

You must provide all the details in connection with your circumstances it is always helpful to get letters of support and provide evidence to argue your Private life in the UK. You must make it a point to provide all the evidence in connection with your circumstances, It will allow the Home Office to consider your application properly. You must also provide all the evidence pertaining your family life in the UK under Articke 8 of the ECHR. It is always good practice to provide all the details of how your life functions in the UK, including the length of your residence in the UK. 

Any applicant must keep in mind that the right of appeal will only be granted if you can prove that the refusal will amount to breach of your Human rights and refusal of your application will be unlawful under section 6 of the Human Rights Act 1998.

Discretionary Leave to Remain Fees

The current fee for the application for discrtionary leave to remain in the UK is £1258 and the Immigration Health Charge £2587.50 (for 2.5 years). In case you are unable to afford the fee you can always apply for a fee waiver for the application fee. Fee waiver can be granted on the basis that you are unable to afford the application fee and you must provide a detailed account of your finances including your income and expenses, Again it is best to provide a transparent account because the Home Office is going to check your credit history online. Should there be any undisclosed accounts and finances your application for the fee is likely to be refused. Unfortunatley refusal of a fee waiver does not have a right of appeal. 

Discretionary Leave to Remain Application Processing Time

The application form must be completed online and then you must pay the relevant fee or provide fee waiver code for the application fee. You must book your biometric appointment, you will receive a portal to upload the evidence which must be arranged properly and submitted with proper details explainign why discretion should be exercised in your favour. The Home Office general time frame is between 6 months to 12 months to receive a decision on your application. 

The Home Office can take longer on initial applications, however with the application for extension, it is generally decided quicker compared to the initial application. Try to make a letter to explain your circumstances and list all the document being submitted with the application, this always helpd the Home Office to look at things a little quicker. You must provide all the documents in English Language, make sure that the documents are valid, as this sometimes causes delay and the Home Office has to write back in order to request documents to be translated.

Frequently Asked Questions 

• Which form I must complete apply for discretionary leave to remain?

           You can complete the application form FLR (HRO)

• Do I need to do biometrics for the application?

           Yes, you will need to provide biometrics as a part of the process and this is a validity requirement for the application. 

• How do I submit the evidence to the Home Office for my application?

           You will need to upload the evidence online as a part of the application process

• Can I apply for Discretionary leave if I have overstayed or illegally in the UK?

           Yes,you can apply for the application even if you are an overstayer or illegally in the UK.

• Where do I book the appointment?

           If you are inside the UK then you can book the appointment through the application link from www.gov.uk website and if you are outside the UK, then you can book the appointment through VFS or TLS.

• Do I need to meet the English Language requirement for Discretionary leave to Remain?

           No, there is no English Language requirement, however, it will surely add some value if you have any evidence of English Language certificate, as under Section 117 of the NIAA 2002 requires Tribunal to consider it a public interest factor at your appeal.

• Do I need to be of a minimum age to apply for Discretionary leave to Remain?

           No, there is no minimum age 

• Why should I choose you?

           We provide you with a better service than other and have a highly knowledgeable lawyer. We do not give you an online portal and you always get reply to your email or phone calls.