Discretionary Leave to Remain

Overview of Discretionary Leave to Remain

Discretionary leave to remain is a type of immigration permission that is given to certain immigrants who cannot be processed under existing UK immigration rules.

This may apply in situations where there are exceptional or special compassionate grounds that justify the individual being allowed to stay in the UK.

Another reason for why discretionary leave to remain might be granted is if there would be “unjustifiably harsh” circumstances that arise from deporting a migrant from the UK.

Discretionary leave to remain is normally only granted when normal leave outside the rules guidelines under the European Convention on Human Rights (ECHR) Article 8 are not applicable. Article 8 covers humanitarian protection, asylum, private and family life reasons.

Instead, circumstances where the Home Office may grant discretionary leave to remain may include medical grounds, human trafficking, and others.

Eligibility Criteria for Discretionary Leave to Remain

Whilst there is no fixed list of circumstances in which discretionary leave to remain will be granted, you may be eligible if one of the following situations applies to you: 

• Medical considerations: If you have substantial medical reasons for wishing to stay in the UK, you may be able to apply for discretionary leave to remain on the grounds that returning to your home country would breach your human rights under the ECHR
• Other breaches of the ECHR: If returning you to your home country would breach the ECHR for reasons other than medical considerations, you may also be eligible to apply for discretionary leave to remain 
• Exceptional circumstances: This may apply, for example, if you have exhausted all other routes to remaining but are able to demonstrate reasons why you have been unable to voluntarily leave the UK 
• Modern Slavery- If you have been a victim of human trafficking or modern slavery, you may be eligible for discretionary leave to remain in the UK 

Discretionary Leave to Remain on Medical Grounds

One instance where discretionary leave might be granted is on medical grounds.

This encompasses a variety of circumstances, but the most common may include (but not be limited to) the following:

• The individual requires medical treatment in the UK that is not available in their home country
• The individual may be subject to inhuman treatment if they were to leave the UK
• The individual’s physical or mental health would be severely affected if they were to leave the UK

Discretionary leave to remain on medical grounds directly relates to Article 3 of the ECHR, which refers to freedom from torture and inhuman or degrading treatment.

In the context of discretionary leave to remain, denying an individual the chance for improvement or stabilisation of their medical condition, or incurring risk of relapse or degradation of health may be considered to be in violation of Article 3.

In order to qualify for discretionary leave to remain on this basis, all applicants would have to show documentary evidence that there are strong, compelling reasons to support their staying in the UK.

This may be evidence that they would suffer a serious decline in health or a reduction in life expectancy as a direct result of lack of access to appropriate medical treatment. Alternatively, it may be evidence that the applicant is at a critical stage of their illness and it would be considered inhuman to deprive them of their current medical care.

Other Circumstances Where Discretionary Leave to Remain May be Granted

In addition to medical grounds, there are a number of other circumstances where discretionary leave to remain may be justified.

For instance, discretionary leave to remain may be granted if the applicant is at risk of being victim to modern slavery or human trafficking. In this instance, there must be significant evidence of a risk of the applicant being re-trafficked, or significant evidence that they would come into harm from those who might want to exploit the applicant.

In addition, discretionary leave to remain may be granted in the following general circumstances:

• To facilitate the care and welfare of unaccompanied asylum-seeking children
• Asylum seekers who cannot be classed or categorised into any existing immigration policy
• Other exceptional circumstances not already listed. In these instances, character, conduct, previous compliance with immigration rules and length of time spent in the UK will all be taken into account when ruling eligibility for discretionary leave to remain.

It’s important to note that all discretionary leave to remain applications are judged on a case by case basis, and individual factors and circumstances will always influence the decision-making process.

Breaches of the ECHR

If removing you from the UK would create a real risk of breaching another right protected by the ECHR (other than Article 8 family and private life, which has its own policy), you may be considered for discretionary leave. 

This may apply if your situation involves serious interference with an ECHR right that is not covered by refugee status or humanitarian protection but is still serious enough to justify a grant of leave. Decisions are made on a case-by-case basis, taking into account the severity and likelihood of the breach.

Exceptional Circumstances

In some cases, a person may not fit into any standard immigration category, but there are still strong, compassionate or compelling reasons why it would be wrong to require them to leave the UK. 

Discretionary leave may be considered in exceptional situations, particularly where other relevant routes have been examined and found not to apply. When deciding whether to grant leave, the Home Office can take into account factors such as your character and conduct, how far you have complied with immigration laws, the length of time you have lived in the UK, and the strength of your ties here.

Modern Slavery and Human Trafficking

If you are a confirmed victim of modern slavery or human trafficking, you may be eligible for a period of leave to remain in the UK. For most cases decided on or after 30 January 2023, this protection is now mainly offered through the Temporary Permission to Stay (TPS) route set up by the Nationality and Borders Act 2022, instead of the usual discretionary leave. 

Discretionary leave may still arise in some older or more complex cases, for example, where you received a positive conclusive grounds decision before that date or where there are additional human‑rights or exceptional factors. An adviser can help you work out whether TPS, discretionary leave, or another route is most appropriate in your circumstances.

Unaccompanied Asylum‑Seeking Children

Before 6 April 2013, unaccompanied asylum‑seeking children (UASCs) were often granted discretionary leave when they did not qualify for refugee status or humanitarian protection. Since that date, most such children are instead considered for a specific form of leave under paragraphs 352ZC to 352ZF of the Immigration Rules. 

Discretionary leave may still be relevant in rare cases where a child is applying in their own right and has individual exceptional circumstances that fall outside those rules, or where there are additional human‑rights factors that justify leave.

UK‑Born Children of Parents Granted Discretionary Leave

If your child is born in the UK and neither parent is a British citizen, the child may be granted limited leave in line with the parent who holds discretionary leave so that the family’s immigration status remains consistent. 

Where only one parent has discretionary leave, the Home Office will look at the position of the other parent and at the family’s overall situation before deciding what leave, if any, to grant the child. In all such decisions, the Home Office must take into account the best interests of the child as a primary consideration under Section 55 of the Borders, Citizenship and Immigration Act 2009.

How Can I Apply for Discretionary Leave to Remain?

You must apply for discretionary leave to remain online through the Gov.uk website. It must be made in the UK. The exact form you use can depend on the basis of your claim and whether you already hold discretionary leave:

As part of the application process, you must pay the application fee, the immigration health surcharge, and also make an appointment to give your biometrics information in order for you to receive a biometric residence permit.

What Documents Will I Require for Discretionary Leave to Remain?

The exact documents which you require will vary depending on your particular circumstances and on the nature of your application for discretionary leave. However, some variation of the following documents will generally be necessary: 

• Valid ID 
• Travel documents 
• Proof of exceptional medical grounds for staying in the UK (if applicable) 
• Proof that being returned to your home country would result in a breach to your human rights under the ECHR

When applying for discretionary leave, it is essential that you prove that you have exceptional circumstances which justify the granting of leave to remain in the UK. If you are unable to provide sufficient evidence that your circumstances are exceptional, your application will not be successful. 

What Are the Fees for Discretionary Leave to Remain?

It costs £1,407 to apply for discretionary leave to remain.

Note that you will also have to pay the immigration health surcharge as part of your application, which will be £1035 a year for applicants 18 or over, or £776 a year for applicants under 18.

Discretionary Leave to Remain Processing Times

Discretionary leave applications can take several months or more to be decided, especially if your situation is complex or if there is a backlog of cases. If the Home Office asks you for further information or documents, responding promptly and in full can help avoid unnecessary delays in processing your application.

What Can I Do With Discretionary Leave to Remain?

Being granted discretionary leave to remain allows you to live in the UK for the period of your leave, work without a work restriction, and take up most forms of study. You will have access to public funds, including certain state benefits, but you will still be treated as having temporary, limited leave rather than permanent status. However, there are some important limitations to be aware of:

• If you have limited discretionary leave, you are not eligible for higher education student finance under the current government regulations, even though you can attend university
• A study condition applies to adult temporary migrants with a DL, and for some higher‑education courses in sensitive subjects, you must obtain an Academic Technology Approval Scheme (ATAS) clearance certificate before you can start your studies
• Universities and colleges decide fee status under education rules, and not all institutions treat students with discretionary leave as “home” students, so your immigration status may mean you are charged international‑level tuition fees even if you have been living in the UK for some time

How Long Does Discretionary Leave to Remain Last?

Discretionary leave to remain is not normally granted for periods longer than 30 months (or two and a half years).

However, the specific duration of leave granted will vary from case to case. For example, shorter or longer periods of leave may be granted if there are appropriate or strong compelling or compassionate reasons to justify it.

In particular, longer periods of discretionary leave to remain may be appropriate if it’s in the best interests of a child.

As such, it’s best not to assume or expect that you will be always granted leave under discretionary leave to remain standard length of 30 months, as individual factors and circumstances will heavily influence this decision.

The exact duration of discretionary leave will depend on the circumstances of the applicant. However, it will not generally be granted for more than a period of 2 and a half years at once. In some cases, a shorter or longer period may be granted, if deemed appropriate.

Note that, if you are granted discretionary leave on one occasion, it does not guarantee that you will be granted further leave once your original leave expires.

Can Discretionary Leave to Remain Lead to Indefinite Leave to Remain?

It is possible for an individual with discretionary leave to remain to successfully apply for indefinite leave to remain (ILR).

You will need to have been in the UK for a minimum number of years before you can apply for ILR. This quota will depend on when you were first granted discretionary leave to remain.

• If you were granted discretionary leave to remain on or after 9 July 2012, you will be able to apply for ILR if you’ve been in the UK for at least 10 continuous years.
• If you were granted discretionary leave to remain on or before 8 July 2012, you will be able to apply for ILR if you’ve been in the UK for at least 6 continuous years.

Note that you must apply for ILR no more than 28 days before your current discretionary leave to remain expires. In addition, time spent in prison with a criminal conviction will not count towards the minimum residency requirement, although leave accrued whilst waiting for a valid application may be considered.

The Discretionary Leave to Remain 10 Year Route

The 10-year discretionary leave route is the pathway to indefinite leave to remain (ILR) for people who were first granted discretionary leave on or after July 9, 2012. On this route, you are expected to build up a long period of residence with limited leave before you can ask the Home Office to grant you permanent settlement.

Under this route, you must complete a continuous period of at least 10 years (120 months) of lawful limited leave in the UK before you can apply for ILR. This time must be spent living in the UK with valid leave and without interruptions that break your continuous residence, such as long periods without permission or significant gaps between grants of leave.

You should apply to extend your discretionary leave on the correct form before your existing leave expires, so that your stay in the UK remains lawful and your residence continues to count towards the 10‑year period. If you apply after your leave has already expired, your application will be treated as out of time, which can create a gap in lawful residence and may affect both your immigration position and your ability to qualify for ILR on the discretionary leave route.

Reaching the 10‑year qualifying period does not automatically guarantee ILR. You will still need to show that you meet the relevant suitability requirements (for example, in relation to criminality and immigration history), that your residence has been continuous and lawful throughout the qualifying period, and that you meet any other ILR requirements that apply at the time you apply.

Is Discretionary Leave to Remain the Same as Indefinite Leave to Remain ?

No, discretionary leave to remain is not the same as indefinite leave to remain. Whilst discretionary leave to remain generally allows stays of up to 2 and a half years, indefinite leave to remain allows you to settle permanently in the UK.

Even if you are granted discretionary leave on one occasion, there is no guarantee that you will be granted further extensions, and you may eventually still be expected to leave the UK. This is not the case with indefinite leave to remain. However, discretionary leave to remain may provide a route to indefinite leave to remain, in some circumstances.

Can Discretionary Leave be Withdrawn (Curtailed) Early?

In some cases, the Home Office may choose to end (curtail) your discretionary leave earlier than the period which was originally granted. There are a number of circumstances in which this might occur, such as: 

• If you engage in criminal activity 
• If you are deemed to be a threat to national security 
• If it is discovered that you initially entered the UK, or gained discretionary leave, via fraudulent means 
• If there is a change in your circumstances such that the leave to remain in no longer necessary 

In such cases, you will likely be expected to leave the UK.

What If My Application to Extend My Discretionary Leave is Unsuccessful?

Being granted initial discretionary leave to remain in the UK does not guarantee that future applications to extend your leave will be successful. However, you may still be eligible to remain in the UK under other routes. For instance, it may be deemed that you have grounds to remain in the UK on the basis of your human rights, due to reasons of private and family life, even if you do not otherwise satisfy the discretionary leave requirements. 

However, the immigration rules surrounding the granting of further leave are highly dependent on the circumstances in question, and the decision is ultimately at the discretion of the Home Office. If your application to extend your discretionary leave has been unsuccessful, contact IAS today on +44 (0)330 057 3918 to learn more about why your application may have been unsuccessful and to receive advice on your next steps. 

How Can IAS Help?

Discretionary leave to remain is one way that the UK helps to process migrants and asylum seekers where other classifications of immigration rules cannot be applied.

If you’re an individual seeking to stay in the UK through discretionary leave to remain, an asylum claim, or any other form of immigration permission, IAS can help.

We are expert immigration lawyers who are well versed in handling a wide variety of UK immigration, asylum and leave to remain cases. Regardless of your personal situation, circumstances or issues, our team of friendly and professional legal advisers can work with you to get the result you’re looking for.

Whether you need to apply for discretionary leave to remain on the basis of medical grounds, on behalf of an asylum-seeking child, or family or private life reasons under Article 8 reasons, we can help.

For more information about the services we provide and how we can help you, reach out to a member of our team today. Call us on +44 (0)333 414 9244, or contact us online.