Discretionary Leave

Discretionary Leave to remain in the UK (DLR)

The Secretary of State has the discretion to grant limited leave to those who do not qualify for Humanitarian Protection or leave under the Immigration Rules and that leave is known as Discretionary Leave. The circumstances in which Discretionary Leave will be granted will be defined and tightly focused.

Discretionary Leave can be granted in the following circumstances:-

  • The removal of the individual would breach Article 8 of the ECHR by breaching the right to a private and family life in the UK. If an asylum seeker was joining a member of a family long-established in the UK and it was unreasonable to expect the family to follow the asylum seeker back to his country of origin.
  • The removal of the individual would breach Article 8 of the ECHR by breaching the right to a private and family life in the UK. If a person is an Overstayer or Illegal Entrant in the UK then they may qualify for a Discretionary Leave to Remain in the UK. However it would depend upon the individual facts and circumstances of the case.
  • Removal would breach Article 3 of the ECHR because of a person’s medical condition or because of other severe humanitarian factors in the country of return such as the absence of food or shelter; a complete absence of treatment, facilities or social support in the asylum seekers home country which may result in a painful death and cause acute physical or mental suffering. In practice this could mean, for instance, that many refugees who are suffering from HIV/Aids could not be returned to their country of origin if it is a developing country.
  • In cases of unaccompanied asylum seeking children, where there are not adequate reception arrangements available in their own country.
  • Individuals who would qualify for Humanitarian Protection but for committing activities that have caused their exclusion.
  • Individual circumstances, although not meeting the criteria of any of the other categories listed above, are so compelling that it is considered appropriate to grant some form of leave. This kind of case will be rare.

The duration of leave granted will be entirely within the discretion of the Secretary of State. Normally for Article 8 cases it will be 2 years based on family life and three years based on private life; Article 3 will be three years; unaccompanied asylum seeker children will be until they attain 18 years old and the exclusion cases from Humanitarian Protection will be 6 months.

Discretionary Leave will not be granted on the basis that there is no practical way of removing a person when the Secretary of State could not obtain a travel document or there is no practical route to the country of origin.

Applications for extension of Discretionary Leave also will be at the sole discretion of the Secretary of State. It would be subject to an active review, to decide whether the person still qualifies.

In all cases the holder of Discretionary Leave must have completed a minimum of six years to become eligible for settlement. Any time spent in prison does not count towards settlement. However a period of 10 years is required for a person within the exclusion cases before being eligible to apply for settlement in the UK.

Those granted with Discretionary Leave will have access to public funds and will be eligible to work.

Overstayer & Illegal Entrant in the UK – hyperlink to the banner in the Home Page