The Immigration Rules are intended to be an exhaustive legal framework for deciding who should be allowed to enter and stay in the UK. Ordinarily, if a non-UK citizen cannot show that they meet the requirements of one of the many categories of permission set out in the Rules, they will not be able to stay in the UK. However, there may be exceptional circumstances which mean that not allowing someone to remain in the UK would breach their human rights or otherwise be considered ‘unjustifiably harsh', even if they do not qualify under the Rules. Discretionary Leave (‘DL') is one of the tools the Home Office can use to deal with such scenarios. 

Discretionary Leave and Other Types of Immigration Permission

Discretionary Leave is one of several policies in place to deal with the type of exceptional case described above. It is intended to be a policy of ‘last resort', when an applicant is otherwise unable to obtain immigration status in the UK. This means that if an individual qualifies for  asylum or humanitarian protection status, they should be granted on that basis and not receive Discretionary Leave. 

Many immigration decisions engage a person's right to respect for private and family life, protected by Article 8 of the European Convention on Human Rights (‘ECHR'). However, Discretionary Leave is not currently intended to cover such cases. Instead, the Home Office has, over the years, tried to incorporate Article 8 considerations into the Immigration Rules themselves. Provision for exceptional circumstances has been included in applications under  Appendix FM and  Appendix Dependent Relative. Other cases with an Article 8 element are covered by  Appendix Private Life. 

What Situations Are Covered by Discretionary Leave?

First, it should be noted that Discretionary Leave can only be applied from within the UK. Second, the relevant Home Office guidance recognises that the appropriateness of granting Discretionary Leave depends on all the circumstances of a particular case. In the words of the guidance, the following are only ‘broad categories' of cases in which Discretionary Leave may be relevant: 

Article 3 medical treatment cases

Article 3 ECHR prohibits torture and inhuman or degrading treatment or punishment. In the European Court of Human Rights' interpretation, which has been accepted by the UK courts, Article 3 may be breached if an immigrant with a serious health condition is returned to a country in which they would be unable to access essential medical treatment. The threshold for such claims is  very high. The Home Office has separate guidance on assessing Article 3 medical treatment claims. Where the threshold is met, leave will be granted in accordance with the Discretionary Leave policy. 

Other ECHR cases

The Guidance goes on to state that Discretionary Leave ‘may be appropriate' where returning an individual to their country of origin would result in a flagrant denial of another right protected by the ECHR but which does not qualify the individual for humanitarian protection. However, the Guidance also notes that this will rarely be the case without return also breaching Article 3. 

Exceptional circumstances 

Discretionary Leave may also be granted following consideration of paragraph 353B of the Immigration Rules. Paragraph 353B applies in two scenarios:

  • Further submissions have been made and the decision-maker has made an assessment as to whether or not they amount to a  fresh claim; or 
  • An individual has exhausted all rights of appeal, no further submissions are outstanding, and a review is undertaken with a view to removal. 

In these circumstances, decision-makers are required to assess whether there are exceptional circumstances which make removal from the UK no longer appropriate, having regard to the migrant's character, conduct and associations (including any criminal record); compliance with the conditions attached to any previous grant of permission, temporary admission, and immigration bail; and the length of time they have spent in the UK for reasons beyond their control after the refusal of their human rights or asylum claim. Paragraph 353B does not apply to submissions made from overseas or in respect of individuals liable to deportation. 

Where, following consideration under paragraph 353B, it is considered that a grant of leave is appropriate, Discretionary Leave will be granted. 

Exclusion and criminality cases

The Home Office maintains a separate policy, the Restricted Leave policy, which applies where someone is either excluded from refugee status in accordance with Article 1F of the 1951 Refugee Convention or subject to expulsion in accordance with Article 33(2) of the Convention but that person cannot be removed without breaching the ECHR. The Restricted Leave policy is intended to govern all such cases, however, individuals who are excluded from refugee status or humanitarian protection or whose status has ceased, been cancelled or revoked and who do not fall within the scope of the Restricted Leave policy may be considered for a grant of Discretionary Leave. 

Where an individual does not come within the scope of the Restricted Leave policy, any criminal history can still be taken into account in line with  Part 9 of the Immigration Rules or paragraph 353B(i) of the Rules. If an individual with a criminal record is granted Discretionary Leave due to the exceptional circumstances of their case, that criminal record can be a factor affecting the duration of DL granted (see below on the conditions of leave granted). 

Other asylum cases

Finally, the guidance makes provision for cases not falling under the headings discussed above. However, this catch-all applies only to applicants whose asylum claim has failed. For non-asylum cases, decision-makers are directed to the  Leave Outside the Rules guidance. 

Transitional arrangements and previous categories of Discretionary Leave

Over the years, the scope of Discretionary Leave has evolved significantly. It was previously used to manage various types of cases which have since been brought within the Rules or moved to separate policies: 

  • From April 2003 to July 2012, individuals who could not be removed without breaching their Article 8 rights received Discretionary Leave;
  • Until April 2013, unaccompanied asylum-seeking children (UASC) who were ineligible for asylum, humanitarian protection or any other kind of leave but who could not be returned due to a lack of adequate reception arrangements in their countries of origin were granted Discretionary Leave. Since April 2013, the cases of such children are considered in accordance with paragraphs 352ZC – 352ZF of the Immigration Rules (known as ‘UASC' leave);
  • Cases now falling under the Restricted Leave policy were dealt with under the Discretionary Leave policy before Restricted Leave was introduced in September 2011;
  • Before 30 January 2023, grants of Discretionary Leave were considered where an individual had (a) received a positive conclusive grounds decision by a competent authority recognising them as victims of modern slavery, (b) made an asylum or protection claim or further submissions based, at least in part, on a fear of re-trafficking, and (c) that claim had not yet been finally determined. From 30 January 2023, such situations are dealt with by the framework set out in section 65 of the Nationality and Borders Act 2022. 

Transitional arrangements are in place for some of these legacy cases.

Grant and Conditions of Discretionary Leave 

The length of permission granted under the Discretionary Leave will depend on the particular circumstances of the applicant. The guidance sets out an expectation that leave is not to be granted for more than 30 months (2 ½ years). However, both shorter and longer (including ILR) grants are possible, if mandated by the particular facts of a case. Further grants of Discretionary Leave will depend on whether the reasons which led to the initial grant remain in place. 

Holders of Discretionary Leave are allowed to work and entitled to access public funds. 

The guidance notes that consideration of grants of leave for longer than 30 months will likely most often be relevant in the case of children. This is because the Home Secretary has a statutory duty (under section 55 of the Borders, Citizenship and Immigration Act 2009) to take account of the need to safeguard and promote the welfare of children in the UK when exercising immigration powers and functions. 

Individuals residing in the UK with Discretionary Leave are generally eligible to apply for settlement/indefinite leave to remain once they have completed 10 years' continuous residence. However, individuals are required to show that the grounds on which they obtained Discretionary Leave continue to apply when they apply for settlement. 

Once granted, Discretionary Leave can be ‘curtailed' (i.e. cancelled). Where an individual's conduct is criminal, a threat to national security, or brings them within the grounds of exclusion in Article 1F of the Refugee Convention (whether this conduct takes place after the grant of Discretionary Leave or occurred previously but only comes to light after Discretionary Leave has been granted), Discretionary Leave may be curtailed, and the Home Office may either pursue deportation or, if that is not possible, grant Restricted Leave instead. Like other forms of leave, Discretionary Leave can be curtailed if it is found to have been obtained through deception or if the individual in question becomes liable to deportation. 

Conclusion 

Discretionary Leave is a complex matter. Much depends on the circumstances of an individual's case. The guidance is explicit that it is intended to be used ‘sparingly', and in ‘exceptional' cases only. Any claims for DL are thus likely to require intense preparation and expert advice. 

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.