Human Rights
Discretionary Leave (DL) applies in both asylum and non-asylum cases applying from within the UK. DL cannot be applied for from abroad. It is intended to cover exceptional and compassionate circumstances and, as such, should be used sparingly. DL is granted outside the Immigration Rules in accordance with Home Office policy set out in their instruction. It must not be granted where a person qualifies for asylum or humanitarian protection (HP) or for family or private life reasons.
Asylum claimants refused protection but granted DL must be issued with a ‘Reasons for Refusal Letter (RFRL)’ explaining why the asylum and HP claim has been refused and why they have not been granted leave on the basis of family or private life. The primary reasons for granting DL should also be set out briefly. These reasons do not need to be detailed, but it must be clear why DL has been granted. The letter to the claimant should briefly refer to the basis on which leave was granted.
Discretionary Leave granted before 9 July 2012
Applicants granted discretionary leave before 9 July 2012 are able to extend their visa permission under the Rules in place at the time they were granted their initial discretionary visa.
Successful extension applications will be granted for 3 years and the individual will be able to apply for indefinite leave to remain once they have completed 6 years with this status (3 plus 3 years).
You can apply for Indefinite Leave to Remain (ILR) upon completion of 6 years under the Discretionary Leave (initial 3 years + 3 years extension). An application for ILR under 6 years route of Discretionary Leave is made either using application form SET (O) or FLR (DL). Those who previously claimed asylum in the UK before they were granted discretionary leave for 3 years should use the application form FLR (DL) and all others should use the application form SET (O) to apply for ILR under the 6 years route of Discretionary Leave.
The applicants applying for Indefinite Leave to Remain (ILR) under the 6 years route of Discretionary Leave are not required to meet the English Language or Life in the UK Test requirement.
Discretionary Leave to Remain (DLR) – 10 Years Route
From July 2012, discretionary leave to remain is usually granted for 30 months under the 10 years route to settlement which means the applicant can apply for ILR after completing 10 years under the discretionary leave to remain.
Initial Application
A person who cannot meet the criteria of the Immigration Rules as set out under Appendix FM and paragraph 276ADE of the Immigration Rules can still qualify for Discretionary Leave to Remain outside the Immigration Rules. For the application for Discretionary Leave to Remain outside the Rules to succeed, the circumstances of the applicant must be exceptional, compelling and compassionate for the Secretary of State for the Home Department to exercise discretion in favour of the applicant. Some applicants may be able to meet such high threshold through strong arguments involving best interests of any children of the applicant.
An application for Discretionary Leave outside the Immigration Rules is made using application form FLR (HRO). If application for Discretionary Leave is successful, you will be granted an initial leave to remain for 30 months under the 10 years route to settlement.
Extension
You can apply for renewal of your discretionary leave to remain which was granted outside the Immigration Rules based on exceptional compelling and compassionate circumstances of the applicant. For the application for renewal of Discretionary Leave to Remain to succeed, there should be no adverse change in the circumstances of the applicant at the time of making an application for renewal of the Discretionary Leave. An application for renewal of Discretionary Leave to Remain is made using application form FLR (HRO) if the application is being made outside the Rules. However, if the circumstances of the applicant have changed in such a way that the requirements of paragraph 276ADE or Appendix FM of the Immigration Rules can be satisfied, it would be better to make an application under the Immigration Rules rather than outside the rules.
UK born children of parents granted DL
Children born in the UK to parents who both have DL and are not British Citizens should normally be granted limited leave in line with their parents. If only one parent has DL, the leave to be granted will depend on the status of the other parent
Duration of Discretionary Leave
Where DL is granted, the duration of leave must be determined by considering the individual facts of the case but leave should not normally be granted for more than 30 months (2 and a half years) at a time.
When a person is granted an initial period of DL, this does not necessarily mean they will be entitled to further leave or to settlement. Subsequent periods of leave may be granted providing the applicant continues to meet the relevant criteria set out in the published policy on DL applicable at the time of the decision.
From 9 July 2012, those granted DL must normally have completed a continuous period of at least 120 months’ limited leave (i.e. a total of 10 years, normally consisting of 4 separate 2 and a half year periods of leave) before being eligible to apply for settlement
Unaccompanied children who have turned 18
Unaccompanied children granted DL in accordance with paragraphs 352ZC to 352ZF of the Immigration Rules who have turned 18 by the time they apply for further leave or whilst a pending application is being considered will be considered in the same way as an adult applying for further leave.
They will no longer qualify for further leave as an unaccompanied child but caseworkers must consider whether they qualify under another category before refusing the further application.
Those granted DL as an unaccompanied child may also apply on another route if they wish to extend their limited leave.
Indefinite leave to remain
A person will normally become eligible to apply for settlement after completing a continuous period of 120 months’ (10 years’) limited leave. The application will be considered in light of the circumstances prevailing at that time. All settlement applications must be made on the appropriate form no more than 28 days before existing leave expires. Any time spent in prison in connection with a criminal conviction will not count towards the 10 years. However, leave can be aggregated either side of a period of imprisonment providing that the continuous residence requirement is met.
Any leave accrued whilst waiting for a valid application for further leave to be considered, may count towards the required period of leave for settlement, providing the application was made in time and leave was automatically extended in accordance with section 3C(2) of the Immigration Act 1971.
From 9 July 2012, those granted DL must normally have completed a continuous period of at least 120 months’ limited leave (i.e. a total of 10 years, normally consisting of 4 separate 2 and a half year periods of leave) before being eligible to apply for settlement.
A person who has was granted initial Discretionary Leave following refusal of his asylum claim and then extension of the same for another 3 years, can apply for Indefinite Leave to Remain (ILR) upon completion of 6 years