Discretionary Leave Application
Applying for discretionary leave to remain allows you to stay in the UK based on compassionate or compelling grounds that do not fit within the usual immigration rules. This could include severe medical conditions, family ties, or other exceptional circumstances. However, the process is often fraught with complexities, uncertainties, and the fear of rejection.
Many applicants struggle to understand whether their circumstances qualify for discretionary leave. The criteria are not always clear-cut, and a compelling case requires careful preparation and expert knowledge.
At Lawhive, we combine advanced technology with the expertise of a regulated law firm to offer you cost-effective, reliable, and compassionate services for your discretionary leave application
Our network of expert immigration lawyers is on hand to provide step-by-step guidance through the entire application process, from understanding your eligibility to completing your application.
Don't let the complexities of the discretionary leave application overwhelm you. Contact our Legal Assessment Specialists today for a free case evaluation and get a no-obligation quote for the services of a specialist lawyer.
What is discretionary leave?
Discretionary leave is permission granted by the UK Home Office for an individual to remain in the UK under exceptional or compelling circumstances that don't fall within the standard immigration rules.
Unlike other forms of leave to remain, discretionary leave is not based on strict legal criteria but on a case-by-case assessment of the individual's situation.
When is discretionary leave granted?
Discretionary leave is typically granted in exceptional or compelling circumstances when an individual's situation does not fit neatly within the standard immigration categories or rules.
The Home Office assesses each discretionary leave application individually, considering the specific details and merits of the case.
Human rights considerations
Applications often involve considerations under the European Convention on Human Rights.
For example, Article 8 (right to family and private life) is frequently invoked in these cases to argue that separating families or removing individuals from their established lives in the UK would violate their human rights.
Discretionary leave may also be considered under other ECHR articles, such as Article 3 (prohibition of torture and inhuman or degrading treatment) if an individual would face severe harm or persecution upon returning to their home country.
Serious medical conditions
Individuals with serious health conditions may be granted discretionary leave if they cannot access adequate medical treatment in their home country. The risk must be significant and removal from the UK could lead to severe deterioration of their health or even death.
Exceptional or compassionate circumstances
Discretionary leave can be granted in cases where there are compelling personal circumstances that make removal from the UK inappropriate. Examples include individuals facing extraordinary hardships or those who have integrated deeply into the UK society over many years without legal status.
This could include cases involving children who have spent most of their lives in the UK or those with no practical ties to their country of origin.
Victims of trafficking or modern slavery
Victims of human trafficking or modern slavery may be granted discretionary leave if they need to remain in the UK for their protection, to access medical or psychological support, or to assist with criminal investigations against their traffickers.
Military or public service
Foreign nationals who have served in the UK armed forces or have made significant contributions to public service may be considered for discretionary leave, especially if their service has resulted in unique circumstances that merit their continued stay in the UK.
How to apply for discretionary leave
Applying for discretionary leave to remain in the UK involves checking the eligibility criteria, gathering the necessary documentation, and completing the application so that it meets expectations.
Assess eligibility
First of all, you need to assess your situation to determine if it fits the criteria for discretionary leave.
It is highly recommended to consult with a solicitor or immigration advisor who can evaluate your case and advise on the best approach. Lawhive provides access to experienced immigration lawyers who can help you understand your eligibility and prepare your application. Contact us for a free case evaluation.
Gather supporting evidence
You need to provide identification documents such as your passport or birth certificate, as well as evidence to support your application. This could include:
Medical reports and letters from doctors detailing your health conditions and the impact of removal from the UK.
Evidence of family ties, like birth certificates, marriage certificates, and proof of dependent children in the UK.
Statements from employers, teachers, or community leaders supporting your integration and contributions to the UK.
Documentation of any past trauma, victimisation, or other personal circumstances.
The appropriate application form for discretionary leave depends on your circumstances.
You should carefully complete the form, providing all requested information accurately, including details about your circumstances, why you are seeking discretionary leave, and any supporting evidence.
Submit your application by post or online through the Home Office website, depending on the form and your specific circumstances. If submitting by post, use recorded delivery to ensure your documents are received and tracked.
Await a decision
The processing time for discretionary leave applications can vary. The Home Office will tell you when they have received you application and may provide an estimated timeline for a decision.
While waiting for a decision, you must comply with all conditions of your current leave. Do not leave the UK while your application is pending, as this could invalidate your application.
The Home Office may request additional information or clarification.
You should respond promptly and provide any requested documents to avoid delays in processing your application.
Decision and next steps
The Home Office will send you a decision letter. If your application is approved, the letter will outline the terms of your discretionary leave, including the duration and any conditions, such as restrictions on work or access to public funds.
If your application is denied, you may have the right to appeal or seek a judicial review.
Consult with a solicitor to explore your options and decide on the best course of action.
4 tips for a successful discretionary leave application
A well-prepared discretionary leave application can significantly increase your chances of success. Here are 4 tips for a successful application:
Make sure that your application is fully completed and that all claims are backed by strong evidence.
Consider working with an immigration lawyer.
Submit your application well before your current leave expires to avoid any gaps in your legal status.
Keep track of your application status and stay updated on any changes in immigration laws that may affect your case.
At Lawhive, we offer affordable, expert legal services to guide you through every step of your discretionary leave application, giving you the best possible support to secure your stay in the UK.
Contact us today for a free case evaluation and quote for the services of a specialist lawyer.
How can a solicitor help with my discretionary leave to remain application?
Applying for discretionary leave to remain (DLR) in the UK involves navigating complex immigration laws and presenting a compelling case based on exceptional or compassionate circumstances. Here’s how a solicitor can significantly enhance your application process and increase your chances of success:
Initial assessment and advice
A solicitor will assess your circumstances to determine if they meet the criteria for discretionary leave. They will help you understand whether your situation is likely to qualify for DLR under the current Home Office guidelines.
They will also advise on the best approach for your application, considering your specific circumstances, the latest legal precedents, and Home Office policies.
Preparing your application
Solicitors assist in identifying and gathering the necessary evidence to support your application. This includes obtaining medical reports, statements from family members or employers, and any documentation that demonstrates your unique circumstances.
They can also help you draft detailed personal statements and letters of support that clearly explain your reasons for requesting discretionary leave and highlight exceptional or compassionate reasons for your application.
Solicitors ensure that your application forms are completed accurately and comprehensively. This reduces the risk of errors that could delay or jeopardise your application.
They handle the submission process, whether online or by post, ensuring that all forms and supporting documents are submitted correctly and within deadlines.
Communication and representation
Solicitors act as your representative in communications with the Home Office, addressing any queries or requests for additional information promptly and professionally.
In case of complications or disputes, your solicitor can advocate on your behalf, presenting your case in the best possible light and arguing for your right to remain in the UK.
Further, if your application is denied, solicitors can advise on the next steps, including appeals or judicial reviews, and represent you in these proceedings if necessary.
Long-term planning and future applications
Solicitors assist with applications for extensions of discretionary leave and guide you on the pathway to applying for Indefinite Leave to Remain (ILR) or other more permanent forms of leave in the future.
They help you understand and comply with the conditions of your leave, such as any restrictions on work or access to public funds, to maintain your legal status in the UK.
Discretionary leave application FAQs
What is discretionary leave to remain?
Discretionary Leave to Remain (DLR) in the UK is a form of immigration permission granted by the Home Office under exceptional or compelling circumstances that do not fit within the standard immigration rules. It is a flexible option used to address unique situations where a person’s removal from the UK would be deemed inappropriate or unjust due to their circumstances.
Who can apply for discretionary leave?
Individuals who do not qualify under standard immigration categories but have compelling reasons to remain in the UK, such as humanitarian protection, serious medical conditions, or strong family ties, may be eligible to apply for discretionary leave.
Key groups of people who can apply for discretionary leave to remain include:
Individuals with serious health issues that can't be adequately treated in their home country.
People facing severe humanitarian issues in their home country, such as conflict, persecution, or natural disasters, which make it unsafe or unreasonable for them to return.
Individuals who have established significant family ties in the UK, such as those with UK-based children, spouses, or other dependents.
Those who have lived in the UK for an extended period and have integrated into UK society.
Individuals who have been trafficked into the UK and need protection and support.
Those who have suffered domestic abuse and cannot return to their home country due to the risk of further violence or a lack of safe options.
Children who have spent a significant part of their lives in the UK, particularly those who have lived in the UK for seven years or more.
Unaccompanied children who have no safe return options and whose welfare would be significantly compromised if removed from the UK.
People who are stateless or without nationality.
Those who do not qualify for asylum but have been identified as needing protection and cannot be returned to their home country for humanitarian reasons.
Foreign nationals who have served in the UK armed forces and whose service has resulted in unique circumstances that justify their continued stay in the UK.
Individuals who have made significant contributions to UK society, such as in public service, community work, or other areas, and whose removal would result in undue hardship or loss to the community.
It's important to remember that discretionary leave to remain is granted on a case-by-case basis and is not defined by strict legal criteria. Instead, the decision to grant discretionary leave to remain often hinges on exceptional or compassionate grounds.
What documents do I need for my discretionary leave application?
The documents needed will depend on your circumstances and the grounds for your application.
Below is a list of common documents and categories of evidence that you may need:
A valid passport or other travel document to confirm your identity and nationality.
Birth certificate.
Marriage or civil partnership certificate.
Utility bills, bank statements, or tenancy agreements.
Previous visa, permits, or Home Office correspondence.
Identification documents for family members in the UK.
School attendance records and reports.
Statements from relatives or friends supporting your claim.
Medical reports and documentation of ongoing treatments, prescriptions, or care plans.
Letters from social workers, charities, or other organisations.
Payslips and employment contracts.
Letters from employers.
Recent tax returns and business accounts.
Relevant court orders or legal agreements.
A detailed personal statement explaining your situation.
How long does the discretionary leave application process take?
The Home Office’s stated processing time for discretionary leave applications is usually within six months. However, this can vary depending on the complexity of the case and the volume of applications being handled at the time.
Can my family be included in my discretionary leave application?
Yes, your immediate family members (such as your spouse and children) can be included in your application if they are also in the UK and their circumstances are connected to yours.
Eligible family members include:
Including other relatives, such as parents or siblings, is less common and typically only possible under exceptional circumstances, such as when they are dependent on you for their care and support.
How long is discretionary leave to remain granted?
Discretionary Leave is usually granted for 30 months (2.5 years), however, the Home Office may grant discretionary leave for a shorter or longer period than the standard 30 months, depending on the specifics of the individual’s situation and the compelling reasons presented in their application.
After 6 years (72 months) of continuous discretionary leave, you may be eligible to apply for Indefinite Leave to Remain (ILR), which allows you to stay in the UK permanently. This assumes that your circumstances remain compelling and justify long-term residence in the UK.
What happens if my discretionary leave application is denied?
If your discretionary leave application is denied, you. may have the right to appeal the decision.
Appeals must be lodged within 14 days if you are in the UK, or 28 days if you are outside the UK and are heard by the First-tier Tribunal (Immigration and Asylum Chamber).
Alternatively, if you believe there was a procedural or factual error in the decision (e.g., incorrect application of immigration rules or failure to consider relevant evidence), you may request an administrative review.
If successful, the original decision may be overturned. If the review is unsuccessful, further steps such as judicial review or reapplication may be considered.
Finally, if you have exhausted all other appeal options or your case involves significant legal issues, you may apply for a judicial review within three months of the decision. This process involves a legal assessment of whether the decision was made fairly and according to the law.
Due to the complexity of judicial reviews, you should get legal advice and representation.
A solicitor can help you assess the viability of judicial review and represent you in court. Contact us for more information.
Can you reapply for discretionary leave to remain?
If your discretionary leave to remain application was rejected and you can provide new or additional evidence that strengthens your case, you can reapply.
What are my rights while my discretionary leave application is pending?
While your discretionary leave application is pending, you generally retain the rights you had under your previous visa or leave, including the right to remain in the UK and, in many cases, the right to work and access public services.
Right to remain
If you submit your discretionary leave application before your current leave expires, you will usually be allowed to remain in the UK legally while your application is being processed.
This is known as "Section 3C leave" under the Immigration Act 1971, which extends your current leave conditions until a decision is made on your application.
However, if you apply after your leave has expired, you may be considered an overstayer and could be subject to removal from the UK.
Right to work
If you had the right to work under your previous visa or leave, this right generally continues while your discretionary leave application is pending, as long as you applied before your previous leave expired. The conditions of your leave, such as the type of work you can do and the number of hours you can work, will continue to apply.
If your previous leave did not allow you to work, you cannot start working while your discretionary leave application is pending unless you receive new permission to do so
Right to access public services
Healthcare access
You can continue to access the National Health Service (NHS) for healthcare needs while your application is pending. Your rights to NHS services will typically be based on the conditions of your previous leave.
Education
If you or your dependents were previously entitled to attend school or higher education institutions, you can continue to do so while your application is under review.
Public funds
If your current leave has a "no recourse to public funds" condition, you must continue to adhere to this condition while your discretionary leave application is pending. You cannot claim most state benefits or housing assistance unless you successfully apply to have this condition lifted due to a change in circumstances.
Can I work while my discretionary leave application is being processed?
If you had the right to work under your previous visa or leave, and you applied for discretionary leave before your previous leave expired, the type of work you can do and the number of hours you can work will continue to apply.
However, if your previous leave didn't allow you to work, you can't start working while your application is pending.
What is the role of the Home Office in the discretionary leave application process?
The Home Office reviews discretionary leave applications, assesses the evidence, and makes decisions based on the merits of each case.
They may also conduct interviews to gather more information.
What should I do if I'm detained during the discretionary leave application process?
If you are detained by immigration authorities while your discretionary leave application is pending, you have the right to know the grounds for your detention, to seek legal advice to have your case reviewed regularly and to apply for bail.
You should contact a solicitor as soon as possible in these circumstances. Your solicitor will represent you during interviews, communicate with the Home Office, and prepare applications for bail or other forms of relief.
What are the common reasons for discretionary leave application denial?
Discretionary Leave to Remain (DLR) in the UK is granted based on exceptional or compassionate circumstances. However, not all applications are successful. Understanding the common reasons for denial can help you better prepare your application or address issues if you need to reapply. Here are some of the frequent grounds for refusal:
Lack of compelling evidence
Incomplete documentation
Weak human rights claims
Failing to meet the threshold for exceptional circumstances
Previous immigration violations
Lack of humanitarian grounds
Public interest considerations
Failure to apply within required deadlines or errors in the application form.
Can I apply for discretionary leave if I am already in the UK on a different visa?
You can apply for discretionary leave even if you are currently in the UK on a different visa if you meet the eligibility criteria and have compelling reasons for the application.
How can medical reasons support my discretionary leave application?
Medical reasons can support your application if you have a serious condition that cannot be treated in your home country.
What should I do if my situation changes after I have applied for discretionary leave?
You should tell the Home Office as soon as possible if your situation changes. This could include changes in your address, family situation, employment status, health, or any other aspect relevant to your discretionary leave application.
To do this, you can use the Change of Circumstances form provided by the Home Office to report changes.
How much does a discretionary leave application cost?
As of 2024, the standard fee for a discretionary leave application is £1,033 per applicant, including dependents. This fee applies to most applications submitted for discretionary leave, whether it's the initial application or a renewal.
All applicants are also required to provide biometric information (fingerprints and a photo) as part of the application process. The fee for biometric enrolment is £19.20 per person.
Further, applicants may required to pay the Immigration Health Surcharge to access NHS services. This is calculated based on the length of your discretionary leave.
Engaging a solicitor to assist with your discretionary leave application can vary widely depending on the complexity of your case and the level of service required. Fees can range from £1,000 to £3,000 or more. Some solicitors may offer fixed fees, (like our network of immigration lawyers at Lawhive) while others charge hourly rates.
What should I expect during a Home Office interview for discretionary leave?
A Home Office interview is sometimes part of the discretionary leave application process. This interview gives the Home Office a chance to clarify details, assess your credibility, and gather additional information to decide on your application.
Be prepared to discuss your circumstances in detail, including your family life, medical conditions, humanitarian grounds, and any other exceptional circumstances that justify your need for discretionary leave.
Get expert help with your discretionary leave application
At Lawhive, our network of experienced solicitors is on hand to provide expert advice and support when applying for discretionary leave to remain.
To get started, contact us today for a free case evaluation. Our Legal Assessment Team will listen to your situation, recommend the best next steps, and provide you with a no-obligation quote for the services of a specialist lawyer.