Discretionary Leave to Remain

What is discretionary residence permit?

Discretionary Leave to Remain (DLR) was initially introduced in April 2003, alongside Humanitarian Protection (HP), to replace a category known as Exceptional Leave to Remain (ELR). DLR is a special immigration status granted by the UK Home Office under exceptional circumstances, applicable when 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 those seeking asylum or humanitarian protection, but have compelling, compassionate, or exceptional reasons to stay in the UK.

Applications for discretionary leave must be made within the UK. Each case is assessed individually, and the Home Office will review the unique circumstances to determine whether refusal of leave would breach human rights or result in unduly harsh consequences.

DLR changes and other routes

Over the years, changes in immigration rules have incorporated many situations previously covered by discretionary leave into specific visa categories, further restricting its use. Individuals who are eligible for asylum, humanitarian protection, or based on their family or private life in the UK will no longer be granted discretionary leave.

Article 8 Human Rights

Initially, Discretionary Leave to Remain (DLR) was often used when deporting someone 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 July 9, 2012, new 'Family and Private Life' provisions were introduced in Appendix FM and Appendix Private Life of the Immigration Rules. These new rules cover many cases previously dealt with by DLR. Therefore, if an applicant meets the new rules, DLR is no longer used to process Article 8 cases. 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 rules. More recently, on January 30, 2023, cases involving victims of human trafficking or enslavement also moved to the temporary leave to remain policy. This change further limits the circumstances in which DLR can be applied.

When to consider exercising discretion for retention?

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

Medical case

In special circumstances, particularly when returning to one's home country poses significant health risks, individuals may be granted the discretionary right to remain for medical reasons. By demonstrating that being forced to return would result in inhumane treatment due to their health condition, they meet the high threshold for qualifying for discretionary leave on medical grounds.

To support an application on medical grounds, extensive documentary evidence is required to demonstrate a serious deterioration in health or a severe illness. This may include medical reports, testimonies from medical professionals, and evidence proving the lack of appropriate medical treatment in the country of origin. Individuals who need to remain in the UK for medical reasons may be granted DLR when no other immigration category is applicable:

• Application based on medical reasons:If an individual's circumstances do not meet the standard immigration regulations, they can apply on the grounds of human rights. Applicants must provide sufficient documentary evidence to prove that if they return to their country of origin, their health will seriously deteriorate or they will suffer from a life-threatening illness.
• Considerations for Articles 3 and 8:Medical claims assessed under the European Convention on Human Rights (ECHR) are part of a broader immigration process, thus eliminating the need for a separate application.

Human rights case (Violation of the European Convention on Human Rights)

If returning an individual to their country of origin would breach their rights under the European Convention on Human Rights, Discretionary Leave to Remain (DLR) may be considered:

• Asserting Human Rights Claims: When applying for discretionary leave to remain, the Home Office may assess whether deporting an individual to their country of origin would violate their human rights.
• Taking into account all appeals: When considering other immigration appeals, human rights issues will also be assessed to ensure a comprehensive evaluation.
• Rare use case: Applicable to DLR when fundamental rights are severely denied, but not to the extent of other protective statuses.

Considerations for family life

In discretionary leave applications made under Article 8 of the European Convention on Human Rights, consideration of family life is crucial. This provision emphasizes the necessity of providing evidence of personal connections in the UK, such as relationships with a spouse, partner, and children under the age of 18.

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

Cases involving family life must demonstrate that deporting someone would have an unjustifiably harsh impact on family members remaining in the UK. This includes the emotional and psychological effects on children and partners.

Special circumstances

In special circumstances, if other immigration routes are not applicable, DLR may be a suitable option:

• Ongoing submissions: This includes cases with pending submissions or under review during the removal process.
• Long-term residence in the UK: The DLR may apply to individuals who have resided 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 or concerning children, decision-makers must give primary consideration tothe welfare and best interests of the child. Key factors to consider include:

• The Best Interests of the Child:Any decision affecting children must take their best interests as a primary consideration, especially if it could result in the child leaving the UK or facing adverse conditions. When involving children or parents with children, and when Section 55 of the Borders, Citizenship and Immigration Act 2009 applies, consideration may be given to granting Leave Outside the Rules (LOTR) or Discretionary Leave to Remain (DLR) for the welfare of the child.
• Personal circumstances: Decisions must take into account any special needs or concerns raised by parents or guardians.
• Duration of Leave: The duration of a Discretionary Leave to Remain (DLR) should be determined based on the specifics of each case. While the standard leave is 30 months, shorter or longer periods may also be considered, including Indefinite Leave to Remain (ILR) in exceptional circumstances.

When deciding on discretionary leave, the Home Office must demonstrate that the best interests of the child have been fully considered in the decision to grant the leave and its duration.

Apply for discretionary leave

Discretionary Leave to Remain (DLR) is granted outside the standard immigration rules. If you are advised to apply, you and your immigration lawyer have likely explored all other possible avenues. Your case will be considered on the basis of special policies such as Leave Outside the Rules (LOTR) or Article 8 of the European Convention on Human Rights (ECHR).

The DLR application process is complex, and applicants must provide strong evidence to prove that they have special, compassionate, or compelling reasons to remain in the UK. Each application is unique and needs to be tailored to the specific circumstances of the applicant.

Before applying, you must prepare a detailed application and supporting documents, clearly outlining evidence of your exceptional and compassionate circumstances, and why the UK Visas and Immigration should consider your case. At QC Immigration, a key part of the application is preparing legal arguments and compelling evidence to show the UK Visas and Immigration case workers that your situation meets the discretionary leave threshold.

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

• Human Rights Claim:Use the FLR (HRO) form (Further stay - Other human rights) if applying based on special circumstances not covered by the standard immigration rules.
• Claims for family and private life: Use the FLR(FP) form (Further leave to remain based on Article 8 of the European Convention on Human Rights (ECHR) concerning family or private life considerations), if the claim involves considerations of family or private life.
• For other claims:If you fail to meet specific requirements under visa categories such as work, business, family, or indefinite leave to remain, you may need to apply for discretionary consideration with the Home Office. In addition to completing the relevant application forms for the category, legal arguments must also be presented to justify the exercise of discretion.

Application fee

The cost of applying for Discretionary Leave to Remain (DLR) depends on the specific route you apply for. Please refer to the UK visa fee list to understand the potential costs associated with your visa route.

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

Processing time

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

Discretionary leave terms and conditions

Obtaining indefinite leave to remain means you can live, work, and study in the UK without any restrictions. You will also be able to access public funds, including national welfare.

The duration of Discretionary Leave to Remain (DLR) is determined on a case-by-case basis, with the UK Visas and Immigration (UKVI) considering the specific circumstances of each individual. The period for which leave is granted is always guided by the unique facts of the case and the evidence provided. However, the duration of DLR is intended to ensure that recipients do not have 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 of your visa route.
• Shorter or longer durations: If necessary, a leave of absence can be less than or more than 30 months.
• Indefinite Leave to Remain:In exceptionalcircumstances, Indefinite Leave to Remain (ILR) may be granted immediately.

If an individual is involved in criminal activities, poses a threat to national security, or is found to have obtained residency rights through fraudulent means, their discretionary residency may be revoked. In such cases, the Ministry of the Interior may consider shortening the duration of stay, expelling the individual, or issuing a restrictive residence permit.

What happens if your application is rejected?

If your Discretionary Leave to Remain (DLR) application is refused, there may still be other options available. The refusal letter from UK Visas and Immigration (UKVI) will clearly list the reasons for the decision, helping you understand why your application may not have met the required standards.

The decision letter will also provide information about your rights to appeal, including the process and timeframe for submitting an appeal—typically within 28 days. Prompt action and seeking expert legal advice are crucial for effectively navigating the appeal process.

Hiring a UK immigration lawyer from the start can reduce the risk of refusal by ensuring that your application complies with all legal requirements, is fully documented, and presented correctly. If your application is denied, an immigration lawyer can assist you in preparing for the UK visa appeal process, addressing the reasons for refusal, and presenting your case in the most effective manner.

Grant discretionary leave to indefinite leave to remain (ILR) holders

Discretionary Leave to Remain (DLR) can be a pathway to Indefinite Leave to Remain (ILR), allowing individuals to settle permanently in the UK. DLR holders can typically apply for ILR after 10 years of continuous residence in the UK or according to the conditions specified in your UKVI decision letter.

ILR eligibility

• Residency requirement: The applicant must demonstrate a continuous residence in the UK for 10 years, or for the period specified in your UKVI approval letter. Time spent in prison does not count towards this requirement and may affect eligibility.
• Ongoing absence reasons: The applicant must demonstrate that the reasons for their initial discretionary leave still apply at the time of applying for permanent residence.
• Application timing: Applications for permanent residence are usually submitted no more than 28 days before completing the qualifying period of residence, and of course, before the current discretionary leave expires.
• Comprehensive documentation: Providing strong evidence to support the application is crucial. This includes proof of ongoing residence, compliance with visa conditions, and evidence of continuing special circumstances.
• Expert guidance: Consulting with immigration experts can help you navigate the complexities of your Indefinite Leave to Remain (ILR) application, thereby increasing the likelihood of a successful outcome.

Pathways to British citizenship

Once Indefinite Leave to Remain (ILR) is granted, successful applicants may be eligible to apply for British citizenship immediately or after one year, provided they meet the other naturalization requirements.

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

Legal advice on obtaining discretionary residence

When standard immigration rules do not apply and no other visa pathways are available, discretionary leave to remain can offer a potential route for individuals facing exceptional or compassionate circumstances. However, navigating the complexities of a discretionary leave to remain application requires thorough preparation and a profound understanding of immigration law.

The expert team at QC Immigration can assess all circumstances, determine the best approach, and provide strong evidence to support your case. Whether exploring alternative visa routes or applying for DLR, seeking expert advice ensures your application is professionally handled and maximizes the chances of success.

Contact QC Immigration now for us to manage your UK visa application throughout, ensuring you get the best outcome.