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Discretionary Leave Outside the Immigration Rules

What is discretionary leave to remain?

Since 9th July 2012, the Home office under the new immigration rules, have had the policy to grant permission to remain in the UK to those foreign nationals who do not qualify to stay here under the current immigration rules, and nor do they qualify to remain outside the rules on human rights grounds under article 8 based on family and or private life.

In order for the Home Office to exercise discretion which in effect is ‘compassion, the request to stay must be very exceptional and pull at the heartstrings of the Home Office caseworker to the extent to make the decision-maker weep buckets!

Article 3 medical grounds

If returning the foreign national to their country of origin will result on medical grounds in inhuman and or degrading treatment contrary to article 3 of the Human Rights Act 1998, that may be a reason to grant such compassionate permission to stay.

In the past, those who have suffered from HIV/AIDS, and who have managed to show on a very high threshold standard that returning them back to their country will result in their immediate death because of lack of medical facilities and or social care in their country, have managed to gain the compassion of the Home Office in granting them permission to remain in the UK.

In the matter of D v UK [1997] 25 EHRR 423, the European Court of Human Rights in Strasbourg, ruled that expelling D to St Kitt’s would breach his article 3 human rights against torture and inhuman and degrading treatment. In D’s case, there were very little medical facilities at that time to deal with treatment in St Kitts.

However, it has been more difficult for foreign nationals to stay in the UK based on Home Office discretion on the bases of D, as the government is now bound by a more stringent test as a result of the House of Lord’s case of N v UK[2008] 47 EHRR 39. Basically, in order for the foreign national to successfully pull at the heart of the government, that person needs to prove to the higher standard that he/she or they are on their death bed, and would not receive a dignified death if returned home to their country. This case is otherwise known as the ‘ death bed case’.

There was some hope however of watering down the stringent requirement of N, when the European Court of Human Rights in the matter of Paposhvili v Belgium 2016, held that article 3 was engaged where the person’s death was not imminent but where removal would cause a significant deterioration in their condition.

The above conflict between the above slightly broader test and the harsher death bed case could be resolved by the Supreme Court appeal of AM ( Zimbabwe) which was heard in December 2019. We await the result.

Modern slavery and trafficking

This is another reason why the Home Office might grant discretionary leave to remain.

The decision is made by a branch of the Home Office as to whether or not the individual is a victim of modern slavery and trafficking. However, there are rights of appeal if the Home Office ultimately decide the individual is not a victim of modern slavery and trafficking, say on credibility grounds. within the context of an Asylum application.

If the individual is granted leave to remain on discretionary bases, there must be a grant of discretionary leave to remain of at least six years before the applicant is granted permanent settlement in the UK.

Conclusion

Since the new immigration rules came into effect on 9th July 2012, there are only two main sub-categories of discretionary leave to remain, namely those who can successfully argue a medical reason under article 3 of the Human Rights Act and those who can argue to be victims of modern slavery and or trafficking.

Speak with one of our  and Immigration Lawyers London

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