What is discretionary leave?
Discretionary leave to remain in the immigration context means the freedom of choice of the home office to exercise permission favourably to a foreign national to remain in the UK in what they consider to be a deserving cause.
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Examples of discretionary leave forming part of the law
These discretions have over time come to form part and parcel of our laws either by their inclusion into the immigration rules as a human rights issue or by reference to case law which may or may not in time be incorporated into the immigration rules or written into home office policy having the force of law.
For example, those who have been in the UK illegally for at least 20 years and can show physical presence here for each and every year of their residence from when they say they came here would have built up human rights as to their family and or their private life, now enshrined in paragraph 276ADE ( I) ( iii) of the current immigration rules.
Those who have been in the UK for less than 20 years but can show to the satisfaction of the home office (basically the caseworker handling their matter a very subjective decision) that they deserve to remain here nevertheless because they will find it difficult to integrate into society back in their country of nationality or residence and have lost contact with all persons, have no living family there, again can obtain leave to remain under paragraph 267ADE (I) ( vi) of the immigration rules.
Those applying to remain permanently on medical grounds had at one time to show that they were on their deathbed here and would not receive a dignified’ exit’ were they to return to their country. See the House of Lords decision in the case of N v UK ( 2008), but this has been relaxed by AM (Zimbabwe) v SSHD  UKSC. The proposed removal to the country of origin should not lead to an acceleration of the medical issues resulting in death where for example, there is unavailable appropriate medical treatment.
If an asylum applicant fails in an application or appeal, they may nevertheless be granted discretionary leave to remain due to the particular circumstances of their case on human rights grounds.
What should i apply for when my discretionary leave to remain expires or is refused?
Discretionary permission (leave) to remain can mean that on the next occasion, when a person applies, it could be refused as the reason for the original grant of leave may not exist. Such leave is given usually under the 10-year route for 2.5 years at a time for ten years before a person can apply for permanent residence, also known as indefinite leave to remain.
If the situation has changed, such as medical treatment is now available in the country of return, or the applicant does not want to wait ten years before applying for permanent residence, then consideration can be given as to whether there are alternative routes to apply for in getting leave to remain after the 2.5 years discretionary leave is about to expire or if the applicant wants a quicker route to settlement. Here consider such options as a switch based on marriage to a British person or one who is settled here if, after five years in that capacity, that will give a quicker route to settlement than the 10-year route. It could be that an application could be made to switch to skilled worker employment or leave to remain as an unmarried partner if there has been cohabitation for, say, at least two years. Always look at other options available which give settlement after five years, and it may not be necessary to wait for ten years.
How Gulbenkian Andonian Can Help?
Our legal team are here to advise and represent you through the process of discreationary leave to remain with a focus on eventually achieving settlment in the UK. We will professionally assess yoru sitaution and provide you with the relevant guidance to support you. For further information or to book a consulation please contact us.
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Armen Andonian is the CEO of Solicitors Marketing, a London-based legal marketing agency. He is a legal content marketing expert who writes on UK individual immigration, business immigration, family law, finance, employment law and intellectual property. He has a passion for researching and communicating complex legal concepts and ideas in a clear and engaging manner and has developed a reputation as a highly skilled and versatile author on UK law-related issues. He has written for numerous publications, both online and offline, and his work has been featured in a variety of high-profile media outlets.