Leave Outside the Rules, Part 1 of 3: Discretionary Leave
Choosing a visa type to come to the UK can sometimes be similar to looking at a restaurant menu.
Most menus cater to most people. There are several preferable options even when you are not that enthusiastic about any of the items. But, what should we do if there are no options?
As an example, you may leave and find someplace else. This then equates to locating another country to work or live in. But what if it is not possible to relocate to another country? You could have either business or personal ties to this country.
The good news is that you may be able to apply for Leave to Enter or Remain in the UK outside the Immigration Rules.
Then, discretionary leave sounds like asking the chef for an item that is not on the menu.
Here, the criteria laid out in the Immigration Rules are not considered. Instead, applicants request the Home Secretary to exercise residual discretion under the Immigration Act 1971. Leave outside the rules has multiple types, and this is what we will be examining in the upcoming series of blogs.
What is ‘Discretionary Leave’?
This is the purest form of leave outside the immigration rules, as it has no statutory criteria. There is an official Home Office guidance on Discretionary Leave, but Home Office guidance is rather like the Pirates’ Code in the Pirates of the Caribbean film franchise. It is more of a guideline than a set of rules. Unless the criteria in the guidance are also listed in the Immigration Rules or an Act of Parliament, they have as much legal enforceability as the recommendation not to drink red wine with fish.
That said, the Home Office follows the guidance quite strictly when making discretionary leave decisions. The main test for prospective applicants is whether there are exceptional compassionate circumstances or other compelling reasons. Discretion is only granted when an applicant does not qualify for leave under any of the existing asylum, family life, or private life routes. There are a few subcategories of discretionary leave, which will be explored next.
A grant of leave based on medical grounds can be made if removing the applicant from the UK constitutes torture, inhuman or degrading treatment. In effect, this would be a violation of the applicant’s human rights under Article 3 of the ECHR. The two-stage test for granting discretionary leave on medical grounds is as follows:
- Leaving the UK poses a real risk of being exposed to either:
- a serious, rapid, and irreversible decline in their state of health resulting in intense suffering, or
- a significant reduction in life expectancy – (‘significant’ means ‘substantial’) and whether a reduction in life expectancy is substantial will depend on the facts of the case
- The serious, rapid, and irreversible decline in health leading to intense suffering and/or a significant reduction in life expectancy must be a result of either:
- the absence of appropriate treatment in the receiving country, or
- the lack of access to such treatment
As you can see from the criteria, it is quite a high bar and discretionary leave under this category is only ever really granted in unique circumstances. While it is no longer the case that leaves will only ever be granted to those on their deathbed, the Home Office’s threshold is still very high, albeit slightly lower for children with serious illnesses.
Modern Slavery and Trafficking
Here, consideration only begins once a person has been recognised as a victim of slavery or trafficking by the Single Competent Authority, a branch of the Home Office. This does not, however, lead to an automatic grant of discretionary leave. Instead, they will be only granted if it is the view of the Home Office that leave is necessary either due to their personal circumstances.
This can be because they need particular medical treatment or there is a risk they could be harmed or re-trafficked otherwise. Or, if there is evidence that compensation will be pursued from the perpetrator(s). They can also be granted leave in order to help the police.
Discretionary leave can also be granted to asylum seekers who:
- Do not quite reach the bar for refugee status or humanitarian protection,
- Or who are having their refugee status revoked if there are reasons and factors that mean they should not be removed from the UK,
- Is an unaccompanied child refugee.
It is not easy to make a specific policy for every possible immigration case. As humans, we cannot possibly predict the future, but there remains a final ground of ‘exceptional circumstances’. This is intentionally broad so as to allow the space to deal with every possible case that could ever come about.
It is noticeable that granting leave outside the rules is not merely the Home Office asking itself ‘Do we like the cut of their jib?’ – while the official guidance gives many reasons for granting someone leave outside the rules, the criteria are quite narrow and strictly followed.
As a result, in practice, the criteria in the guidance end up being a further extension of the Immigration Rules. The main difference is that leave outside the rules is very rarely granted and, therefore, should only be used as a tool of final resort for those seeking a UK visa.
- Leave Outside the Immigration Rules, Version 2.0, Official Home Office Guidance published on 9 March 2022
Discretionary Leave, Version 9.0, Official Home Office Guidance published on 16 December 2021
Medical claims under Articles 3 and 8 of the European Convention on Human Rights (ECHR), Version 8.0, Official Home Office Guidance published on 19 October 2020
Discretionary Leave Considerations for Victims of Modern Slavery, Version 5.0, Official Home Office Guidance published on 10 December 2021