Discretionary Leave to Remain: What Is It?

With the uncertainty of Brexit looming large, those needing to apply to remain in the UK are facing more challenges than ever.

Many people are struggling to meet certain requirements needed to stay in the UK, which often leaves them worrying about the future for them and their families.

If you are finding yourself unable to fulfil the government’s requirements to stay in the UK indefinitely, you and your family may be able to apply for discretionary leave to remain.

Our expert immigration team could help you establish if you are eligible to apply for discretionary leave to remain, and can support you through your application process.

discretionary leave to remain

A Brief Explanation

Discretionary leave to remain is an allowance that is granted by the UK government. It allows you to remain living in the UK if you are in a situation where it would be unreasonable to expect you to leave your family and your personal life. This is known as discretionary leave on ‘compassionate grounds’, and means that you could be able to bypass the standard immigration rules that would otherwise stop you being able to apply for a right to remain.

Discretionary leave to remain exists to cover cases where it would be unjustifiably severe to remove someone from the UK.  For instance, if you have a serious medical condition or are even in the final stages of a terminal illness, the Home Office may decide that you cannot be sent back to your home country if there is no appropriate care for you to return to. In other cases, if you have been a victim of human trafficking or slavery you may also be able to apply to stay in the UK, since you were brought here against your will.

These examples are extreme, however any situation in which it wouldn’t be reasonable for you to leave your children or spouse is carefully considered by the Home Office. With the help of our expert legal advice, you could be granted discretionary leave, and can be on the way to being able to apply for full settlement in the UK.

Discretionary Leave to Remain and the Protective Benefits of Article 8

When considering your eligibility for discretionary leave to remain, Article 8 is an important factor in the protection of your own human rights and in the consideration of your right to stay. Article 8 is a section of the Human Rights Act that protects your privacy, your family life, your home and your communications.

Article 8 states that:

  1. Everyone has the right for their private and family life to be respected, in addition to their home and their communication with others
  2. Unless it is considered to be in the interests of national security, public safety, or the economic wellbeing of the country, the government has no right to interfere in a person’s private life

When applying for discretionary leave to remain, the guidelines laid out in Article 8 can support anyone who has established a family life in the UK. Gathering the required evidence to demonstrate that you have a private family life can seem daunting at first. However, there are no hard-and-fast rules that state what you need to provide. Official documents such as household bills, bank statements and tenancy agreements are a good place to start.

Additionally, being able to prove that you are registered at a GP surgery and that your children attend school are further factors that can support your claim to having full involvement in society. Statements from family, friends and neighbours can also complete a strong application that proves your personal connection to the UK.

Are There Any Restrictions under Discretionary Leave to Remain?

If you are successfully granted discretionary leave to remain, it is most likely to come after you have been refused indefinite leave to remain. The government is therefore required to provide you with a ‘Reasons for Refusal Letter’, which will explain why you’ve been refused the full leave, as well as the allowances that you’ve been granted under your discretionary leave to remain.

Because the reasons for granting discretionary leave can include medical cases, modern slavery cases and any issue that is considered to breach your human rights, if you fall into more than one of these categories then you will be given the maximum possible amount of time to stay. The period of leave varies on a case-by-case basis, but generally, since 9th July 2012, discretionary leave is granted for an initial period of 30 months.

If you are in the UK under discretionary leave, you will have full access to public funds and will face no restrictions on being able to find and carry out work. Although certain regulations mean that you are unable to apply for student finance, self-funded higher education is also available to those here on limited leave.

In terms of travel, you are also free to leave the UK at any time because there is no restriction on moving in and out of the country on a temporary basis. However, it is worth considering that if you want to eventually apply for indefinite leave to remain, restrictions apply on the amount of time that you can spend out of the country. If you leave the UK for more than 540 calendar days in total (18 months), or more than 180 calendar days in total (6 months) at one time, you won’t be able to apply for permanent residence after five years.

My Discretionary Leave is Expiring – What are the Next Steps?

In most cases, it is unusual for discretionary leave to remain to be granted for more than 30 months (two-and-a-half years). This initial grant doesn’t guarantee that you will be granted a further extension of leave, or indefinite leave to remain.

However;

  • If the criteria of indefinite leave to remain is still the most relevant to you at the time of re-application, you could then be granted another period of discretionary leave under the same terms
  • In some special cases, a longer period of stay may be considered, although most of these cases involve the wellbeing and best interests of a child. If the Home Office caseworker decides that a longer period of leave would benefit a child, this will be considered the best course of action

From 9th July 2012, those that have been granted discretionary leave must have completed a continuous period of at least 120 months’ limited leave (i.e. a total of 10 years, normally consisting of four separate two-and-a-half periods of leave) before being allowed to apply for permanent settlement on the grounds of ‘long residence’.

A person living in the UK as the husband, wife, civil partner or unmarried/same-sex partner of a British citizen or a settled person who either arrives in the UK or applies for permission to stay in the UK on or after 9th July 2012 must live in the UK for five years on discretionary leave before they can obtain indefinite leave to remain.

How We Can Help You

Perhaps you are wanting to make your first discretionary leave application, need to apply to extend your discretionary leave, or are now ready to take the next steps in applying for the full indefinite leave to remain. Our expert immigration team can help you collect and compile the evidence you need to make your application.

Here at AWH we are committed to supporting you from start to finish, and can present your case to the Home Office as soon as possible. Let us help you make positive steps today and secure your future in the UK.

We can help you with your discretionary leave application.

Starting the process couldn’t be more simple!

  • Contact us Contact us Get in touch however suits you best and arrange a consulation with one of our solicitors
  • Meet an expert Meet an expert You’ll meet the expert solicitor assigned to your case and discuss all the necessary details
  • Authorise Authorise Once we’ve got all the details of your case and you’re happy to proceed, just give us the go-ahead
  • We get to work We get to work It’s time for us to get to work! We’ll set up your file on our system and get to work right away
We’re with you, every step of the way