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What is Discretionary Leave?

Discretionary Leave (DL) is a form of leave that is intended to cover exceptional and compassionate circumstances.  In the past, it was granted to applicants that may not have met the Immigration Rules, but whose cases came within Article 8.

DL is granted outside the Immigration Rules in accordance with Home Office policy set out in their instruction. It will not be granted where a person qualifies for asylum or humanitarian protection (HP) or for family or private life reasons.

Discretionary Leave granted before 9 July 2012

Applicants granted discretionary leave before 9 July 2012 are able to extend their visa permission under the Rules in place at the time they were granted their initial discretionary visa.

Successful extension applications will be granted for 3 years and the individual will be able to apply for indefinite leave to remain once they have completed 6 years with this status (3 plus 3 years).

You can apply for Indefinite Leave to Remain (ILR) upon completion of 6 years under the Discretionary Leave (initial 3 years + 3 years extension). An application for ILR under 6 years route of Discretionary Leave is made either using application form SET (O) or FLR (DL). Those who previously claimed asylum in the UK before they were granted discretionary leave for 3 years should use the application form FLR (DL) and all others should use the application form SET (O) to apply for ILR under the 6 years route of Discretionary Leave.

Discretionary Leave to Remain (DLR) - 10 Years Route

From July 2012, Discretionary Leave to remain is usually granted for 30 months under the 10 years route to settlement which means the applicant can apply for ILR after completing 10 years under the discretionary leave to remain.

Such leave is granted within the Immigration Rules.

Discretionary Leave outside the Rules

Although the Rules that were introduced by the government in July 2012 were intended to serve as a complete code, as far as family and private life applications were concerned, it soon became clear that there were cases that merited consideration ‘outside the rules. Therefore, a person who cannot meet the criteria of the Immigration Rules as set out under Appendix FM and paragraph 276ADE of the Immigration Rules can still qualify for Discretionary Leave to Remain outside the Immigration Rules.

For the application for Discretionary Leave to Remain outside the Rules to succeed, the circumstances of the applicant must be exceptional, compelling and compassionate. This is a fast developing area of law and our lawyers at Batley Law have helped many clients argue their cases in relation to their family and private life, particularly in cases involving children.

An application for Discretionary Leave outside the Immigration Rules is made using application form FLR (FP). If application for Discretionary Leave is successful, you will be granted an initial leave to remain for 30 months under the 10 years route to settlement.

How to apply for an extension of Discretionary Leave?

You can apply for renewal of your discretionary leave to remain which was granted outside the Immigration Rules based on exceptional compelling and compassionate circumstances of the applicant.

For the application for renewal of Discretionary Leave to Remain to succeed, there should be no adverse change in the circumstances of the applicant at the time of making an application for renewal of the Discretionary Leave.

UK born children of parents granted Discretionary Leave?

Children born in the UK to parents who both have DL and are not British Citizens should normally be granted limited leave in line with their parents. If only one parent has DL, the leave to be granted will depend on the status of the other parent.

What is the duration of Discretionary Leave?

Where DL is granted, the duration of leave must be determined by considering the individual facts of the case but leave should not normally be granted for more than 30 months (2 and a half years) at a time.

When a person is granted an initial period of DL, this does not necessarily mean they will be entitled to further leave or to settlement. Subsequent periods of leave may be granted providing the applicant continues to meet the relevant criteria set out in the published policy on DL applicable at the time of the decision.

From 9 July 2012, those granted DL must normally have completed a continuous period of at least 120 months’ limited leave (i.e. a total of 10 years, normally consisting of 4 separate 2 and a half year periods of leave) before being eligible to apply for settlement.

Indefinite leave to remain after Discretionary Leave

A person will normally become eligible to apply for settlement after completing a continuous period of 120 months’ (10 years’) limited leave. The application will be considered in light of the circumstances prevailing at that time. All settlement applications must be made on the appropriate online form, usually SET (O).

Any leave accrued whilst waiting for a valid application for further leave to be considered, may count towards the required period of leave for settlement, providing the application was made in time and leave was automatically extended in accordance with section 3C of the Immigration Act 1971.

A person who has was granted initial Discretionary Leave following refusal of an asylum claim and then extension of the same for another 3 years, or those granted before July 2012, can apply for Indefinite Leave to Remain (ILR) upon completion of 6 years.

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