Do you need to apply for a Discretionary Leave to Remain?
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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. This can only be approved by the Secretary of State.
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.
It can only be applied for within the UK and not abroad. 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 experts have vast experience in getting various people leave to remain under this category.
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 (O) application form is required.
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.
Some of the circumstances on the basis of which discretionary leave can be granted are as follows:
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.
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 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.
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: