What is Discretionary Leave to Remain?

Discretionary Leave to Remain, also known as Discretionary Leave (DL), is permission the Home Office can give someone to stay in the UK because their particular circumstances justify it, even though they do not qualify for permission under another normal immigration route. As such, this is not a standard immigration route with a fixed set of eligibility requirements. Rather, the UK’s Home Office assesses all the circumstances and evidence in each individual case.

Discretionary Leave is intended for limited, exceptional or compassionate circumstances. A person would not usually receive Discretionary Leave simply because their visa application narrowly failed to meet one requirement, because they have lived in the UK for some time, or because they would prefer to remain here. The Home Office specifically states that a mere near miss under the Immigration Rules is not itself a reason to grant Discretionary Leave.

Discretionary Leave can only be granted from within the UK. It is normally granted for 30 months at a time, although the Home Office may grant permission for a shorter or longer period where the individual circumstances justify it.

Who is qualified for Discretionary Leave?

According to the Home Office’s Discretionary Leave guidance, a person may qualify for Discretionary Leave if:

They have a serious medical condition and removing them from the UK may breach their human rights
Returning them would breach the European Convention on Human Rights (ECHR), or
Exceptional circumstances apply under paragraph 353B of the Immigration Rules

Since 30 January 2023, eligible confirmed victims of human trafficking or slavery are generally considered under the separate Temporary Permission to Stay for Victims of Human Trafficking or Slavery (VTS) rules. Certain pre-30 January 2023 cases may still be considered for Discretionary Leave, particularly where the person had already received a positive Conclusive Grounds decision and had an outstanding trafficking-related asylum claim or further submissions before that date.

Serious medical conditions

A serious medical condition can support a Discretionary Leave grant where removal would breach Article 3 or Article 8 of the ECHR. It is important to note that the threshold for Article 3 is very high. According to the guidance, the applicant must normally show substantial grounds for believing that removal would expose them to a serious, rapid and irreversible decline in their health, resulting in intense suffering or a significant reduction in life expectancy, because appropriate treatment is not available or accessible in the country of return. This threshold, as confirmed by the Supreme Court in the case of AM (Zimbabwe) [2020] UKSC 17, is only met in very exceptional cases.

For Article 8, medical issues are usually only relevant as part of a wider assessment of a person’s private life. A strong healthcare case is needed before Article 8 can be engaged on medical grounds. Having a serious medical condition alone is not sufficient. The Home Office assesses whether the likely consequences of removal meet the high threshold before granting leave.

Return would breach the ECHR

This applies where removing a person from the UK would breach a right protected under the ECHR, such as the right to respect for private and family life under Article 8, or the right against inhuman or degrading treatment under Article 3, in circumstances that fall outside the standard medical claims category.

Interference with an ECHR right will not, by itself, qualify a person for Discretionary Leave. The Home Office considers whether return would result in a flagrant denial of the ECHR right concerned in the person’s country of origin.

Exceptional circumstances considered under paragraph 353B of the Immigration Rules

Paragraph 353B of the immigration rules allows the Home Office to consider granting leave outside the Immigration Rules where a person has no outstanding asylum or human rights claim and removal action is being considered or has been initiated, but there are exceptional circumstances that mean removal is not currently appropriate.

In either situation, the Home Office considers the person’s situation as a whole, including their character, conduct, any criminal record, compliance with previous immigration conditions, and any period spent in the UK for reasons beyond their control. Paragraph 353B does not apply to a person who is liable to deportation. It also does not apply to submissions made from outside the UK.

How to apply for Discretionary Leave to Remain?

There is no single application form for Discretionary Leave to Remain. The appropriate application process depends on the grounds on which the person is seeking permission to remain in the UK and whether they already have Discretionary Leave to Remain.

No outstanding asylum claim: a person relying on medical or other human-rights grounds must normally make a separate in-country application using the appropriate human-rights application form, such as FLR(FP) or FLR(HRO)
Outstanding asylum claim: the person should raise any medical or other ECHR grounds, together with supporting evidence, as part of the asylum claim. A separate human-rights application is not normally required
Claim already refused or withdrawn: the person may raise new matters and evidence through the further submissions process, or
Appeal rights exhausted and removal under consideration: there is no separate paragraph 353B application form, but the person should provide representations and evidence supporting any exceptional circumstances on which they rely

How long is Discretionary Leave granted for?

Discretionary Leave is normally granted for 30 months at a time. This is not an absolute fixed period. The Home Office may grant a shorter or longer period where the individual circumstances justify it.

A limited transitional form of Discretionary Leave may still apply to certain pre-30 January 2023 modern slavery cases. It is usually granted for up to 12 months and remains available only while the related asylum claim, further submissions, or in-country appeal are still unresolved. The leave must be curtailed or varied once the claim or further submissions are finally determined.

Victims of Human Trafficking or Slavery (VTS) is a separate form of permission from Discretionary Leave. It is normally granted for periods set out in the relevant Home Office guidance. The guidance says that case officers must consider the individual facts of the case but temporary permission to stay (VTS) should not be granted for more than 30 months (across all applications) “for assisting with psychological / physical recovery needs and / or assisting public authorities”. Permission beyond the normal VTS maximum may be considered outside the Immigration Rules under the Discretionary Leave policy where this is justified by a child’s best interests, or by particularly exceptional, compelling or compassionate circumstances.

How to extend Discretionary Leave to Remain?

To extend Discretionary Leave, the person must make a valid in-country application on the appropriate form, normally no more than 28 days before their existing permission expires. The correct form depends on the basis of the person’s existing leave and the grounds on which they now seek to remain.

FLR(DL): used to extend stay for a person who was previously granted leave following a refused asylum claim
FLR(FP): used to extend stay on the basis of family or private life
FLR(HRO): used to extend stay on medical or other human-rights grounds not covered by FLR(FP)

The applicant must provide relevant current evidence showing that they continue to qualify for Discretionary Leave under the policy in force at the date of decision. The Home Office will consider the application and all other available information, including relevant evidence provided when Discretionary Leave was originally granted.

Can Discretionary Leave to Remain be curtailed or cancelled?

Discretionary Leave may be curtailed where the circumstances that justified the original grant have changed or no longer exist. Principal grounds and examples include:

The person’s medical condition has improved
Suitable care has become available for a child in their country of origin
The person no longer faces a real risk of the harm that justified the original grant, and
New evidence shows the original grant was based on incorrect or misleading information

Transitional modern-slavery Discretionary Leave may also be curtailed once the related asylum claim or further submissions are no longer outstanding. Where the person qualifies for another form of permission following the decision, their Discretionary Leave should instead be varied to that new permission.

Can you apply for ILR with Discretionary Leave to Remain?

Discretionary Leave can lead to Indefinite Leave to Remain (ILR). The qualifying period depends on when the person was first granted Discretionary Leave.

6 years if Discretionary Leave was first granted before 9 July 2012
10 years if Discretionary Leave was first granted on or after 9 July 2012

It is important to note that completing 6 or 10 years does not make settlement automatic. Applicants must continue to qualify for Discretionary Leave under the policy and must not be refused because of relevant criminality or exclusion issues. An application should be made on the appropriate form no more than 28 days before the person’s existing permission expires.

A person with Discretionary Leave may alternatively qualify under the separate Long Residence route after 10 years of continuous lawful residence, including qualifying time spent under most other immigration categories before Discretionary Leave.

References:

GOV.UK: Discretionary leave

GOV.UK: Medical claims under Articles 3 and 8 of the European Convention on Human Rights (ECHR)

GOV.UK: Immigration Rules part 12: Procedure and rights of appeal

GOV.UK: Temporary permission to stay: considerations for victims of human trafficking or slavery

SUPREMECOURT.UK: AM (Zimbabwe) [2020] UKSC 17