In this post we examine the possibility of being granted Leave to Remain Outside the Immigration Rules and the possibility of being granted Indefinite Leave to Remain based on the most exceptional compelling compassionate grounds.
Leave To Remain Outside the Immigration Rules (LOTR) Guidance
The Home Office policy document entitled Leave outside the Immigration Rules guidance, Version 1.0, dated 27 February 2018 provides:
"Guidance for decision makers considering leave outside the Immigration Rules, on the basis of compelling compassionate grounds (grounds that are not related to family and private life, medical or protection matters)".
The guidance reflects that the Immigration Rules are designed to provide for the vast majority of scenarios where individuals wish to enter or remain in the UK, however the Secretary of State has a residual discretion under the Immigration Act 1971 to grant leave.
The guidance acknowledges the changes since 09 July 2012 and 10 August 2017 and reads:
"In all family and private life cases, the decision maker will consider whether the Immigration Rules are otherwise met and if not, will go on to consider whether there are exceptional circumstances which would render refusal a breach of ECHR Article 8 because it would result in unjustifiably harsh consequences for the applicant or their family. Each application is considered on its merits and on a case-by-case basis taking into account the individual circumstances.
LOTR on compelling compassionate grounds may be granted where the decision maker decides that the specific circumstances of the case includes exceptional circumstances. These circumstances will mean that a refusal would result in unjustifiably harsh consequences for the applicant or their family, but which do not render refusal a breach of ECHR Article 8, Article 3, refugee convention or other obligations.
Not all LOTR is granted for the same reason and discretion is applied in different ways depending on the circumstances of the claim and the applicant's circumstances. There are separate pieces of guidance for deciding cases raising factors relevant to exceptional circumstances, DL and compelling compassionate grounds".
The guidance reflects that a grant of Leave Outside the Immigration Rules is 'rare' and discretion should be exercised 'sparingly'.
Duration of Leave To Remain Outside the Immigration Rules
The Home Office's LOTR guidance reads:
"The period of LOTR granted should be of a duration that is suitable to accommodate or overcome the compassionate compelling grounds raised and no more than necessary based on the individual facts of a case. Most successful applicants would require leave for a specific, often short, one-off period. Indefinite leave to enter or remain can be granted outside the rules where the grounds are so exceptional that they warrant it. Such cases are likely to be extremely rare. The length of leave will depend on the circumstances of the case. Applicants who are granted LOTR are not considered to be on a route to settlement (indefinite leave to remain) unless leave is granted in a specific concessionary route to settlement".
In any application involving a child section 55 of the Borders, Citizenship and Immigration Act 2009 remains relevant in considering the impact any decision will have on the relevant child.
Application Forms for Leave to Remain Outside the Rules Applications
If making an application for Leave Outside the Immigration Rules from overseas, an Applicant must consider the route which most 'closely matches their circumstances'. If applying for Leave Outside the Rules from within the UK, an Applicant will need to select the form which most closely matches the circumstances on which they rely.
The guidance confirms:
"If an applicant in the UK wishes to be considered for a grant of indefinite leave to remain (ILR) outside the Immigration Rules, they should apply on form SET(O) and pay the relevant fees and charges".
No fee waivers are available if applying for ILR and an application must be accompanied by the correct fee.
Period of LOTR
Most grants of Leave Outside the Immigration Rules will be for a short period but in some circumstances, those which are particularly compelling, could be for longer.
An Applicant for LOTR will need to ensure all the relevant evidence relating to all factors and circumstances relied upon are adduced in the application.
Indefinite Leave to Remain (ILR) Outside the Immigration Rules
It is possible for qualify for ILR outside the Immigration Rules when applying the guidance:
"Applicants seeking ILR outside the Immigration Rules should provide details as to why they should be granted ILR rather than limited leave. ILR is a privilege, not an automatic entitlement. Unless there are truly exceptional reasons, the expectation is that applicants should start a route to ILR and serve a probationary period of limited leave before being eligible to apply for ILR. However, there may be an exceptionally unusual case where ILR is the only viable option, because a short period of leave is not appropriate because there are the most exceptional compelling compassionate grounds".
Right of Appeal
There will only be a right of appeal against a decision to refuse Leave Outside the Immigration Rules where a human rights claim is refused as part of the consideration.
Deferring Removal Pending Change of Circumstances
It is possible for removal to be deferred. The guidance confirms:
"There may be factors raised which will be sufficiently short lived, that it is proportionate to refuse the application or claim on and give an undertaking not to remove the individual or expect them to leave the UK voluntarily until the circumstances have changed. Where it is considered that the person can leave the UK within a short time of the date of decision, it will normally be appropriate to refuse the application or claim outright, not grant a period of LOTR and defer removal until such time as it is possible".
Further Leave Outside the Immigration Rules
It is important to note that a grant of LOTR does not mean a subsequent application for Leave Outside the Immigration Rules will be granted. In applying the guidance the principle is for the caseworker to grant a period of leave which is 'sufficient to overcome a compelling compassionate ground'. As with all applications each case is determined on the individual facts and merits.
Early Settlement Concession and Leave Outside the Immigration Rules
In a recent post we examined the recent early settlement concession for young people living in the UK.
The new concession only applies in the following circumstances:
- Must be aged 18 years or above or under 25 years of age, and has spent half of their lives continuously living in the UK;
- Have either been born in or entered the UK as a child;
- Have held five years of limited leave; and
- Be eligible for further leave to remain under paragraph 276ADE(1) of the Immigration Rules and have made an application under those rules.
The concession does not currently include those that have completed five years and are now aged 25 or over. The policy excludes children under 18, which may impact on children who do not live with their parents or have leave in line with them.
Contact Our Immigration Lawyers
For expert advice and assistance with an immigration application for Leave outside the Immigration Rules based on compelling and compassionate circumstances please contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.