Three Situations Where The UK Government May Grant Discretionary Leave To Remain

UK Houses of Parliament

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Sometimes the right to stay in the UK seems hopeless.  However, few people are aware that the Secretary of State for the Home Department has the discretion to grant discretionary leave to remain in the UK, or an extension of discretionary leave to remain.

Obtaining discretionary leave to remain or an extension of discretionary leave to remain normally requires the applicant to obtain the best advice from an experienced immigration lawyer in London.  This is due to the process often being complex and the caseworker who reviews the application not using their discretion correctly.

Discretionary leave to remain can be granted where the removal of a person from the UK would result in a breach of their rights under Article 8 of the European Convention on Human Rights.  This reads as follows:

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

An immigration solicitor can argue on behalf of their client that removing the migrant from the UK would be an unreasonable and disproportionate interference in their private and family life.

Although there is no definitive list of when discretionary leave to remain or an extension of discretionary leave to remain can be granted, below are three scenarios where compassionate circumstances are often found.

One – you have a serious medical condition

Imagine you are from a war-torn country such as Syria or the Democratic Republic of Congo.  It is estimated that around 70% of Congolese people have no access to health care and Syria’s infrastructure has been all but destroyed in the civil war that continues to rage (in fact, forces have deliberately targeted healthcare facilities in the country, killing hundreds of healthcare workers and causing many others to flee for their lives). 

Now picture what it must be like to be diagnosed with a serious health condition and being threatened with removal from the UK, back to your conflict-ridden country.  This happens more often than you think.  In 2015, Luqman Onikosi, a young Nigerian man’s leave to remain was terminated.  He suffered from Hepatitis B, and whilst in the UK, where he could receive treatment, his disease could be controlled.  But the Home Office denied him discretionary leave to remain on medical grounds.  The Secretary of State at the time, Theresa May (who would have guessed), threatened to deport Mr Onikosi back to Nigeria, where, at that time, there was no treatment available for the liver disease.

This was effectively a death sentence.

In actions that made national headlines, students and faculty members at Sussex University, occupied Bramber House in the middle of the campus to protest against the Home Office’s inhumane treatment.  As a result, Mr Onikosa was allowed to remain in the UK on ‘Temporary Admission’.

The case of Mr Onikosi demonstrates how difficult it can be to succeed in obtaining discretionary leave to remain or extending discretionary leave to remain on medical grounds.  To succeed, you need to prove that your need to stay in the UK and receive treatment outweighs the government’s right to control immigration and manage its healthcare system to protect the nation’s economic well-being.

The threshold is exceptionally high.  Patients who are facing the final stages of a terminal illness, with no prospect of palliative care or family in their home country are usually granted discretionary leave to remain on medical grounds.  However, in GS (India) & Ors v The Secretary of State for the Home Department [2015] EWCA Civ 40, Lord Justice Laws reiterated the high threshold, stating case law suggested the ‘exceptional’ class of circumstance is ‘confined to deathbed cases’.

Two – you are a victim of modern slavery

Modern slavery and human trafficking is a scourge on every society.  In the UK, there have been cases of people entering the country on a domestic worker’s visa being subjected to appalling abuse.  In October 2017, campaigners warned that thousands of foreign domestic workers remain enslaved behind the closed doors of some of Britain’s wealthiest neighbourhoods after the government failed to implement safeguards designed to protect them from abusive and exploitative employers.

Discretionary leave to remain may be granted if you can prove you are a victim of modern slavery.  To prove you have been made subject to slavery, you will need to produce evidence from the National Referral Mechanism.  This is the British government’s system for identifying victims of modern slavery.  Discretionary leave may be granted for 12 months or longer.

Three – your case involves exceptional circumstances

If you can prove your case involves ‘exceptional circumstances’, the Secretary of State may grant you discretionary leave to remain or an extension of discretionary leave to remain.

Again, the threshold is extremely high.  An example of where your application may be successful is whereby due to Home Office incompetence, you have spent a large amount of time in the UK without leave, which has been beyond your control.

In summary

Discretionary leave to remain and having your discretionary leave to remain extended can be a complex process.  Fortunately, by instructing the best immigration lawyers in London to help you make your application can greatly enhance your chance of success.

OTS Solicitors is one of the most respected immigration law firms in London and is a Legal 500 leading firm.  By making an appointment with one of our immigration Solicitors, you can be assured of receiving some of the best legal advice available in the UK today.  Contact us on 0203 959 9123 to speak to one of our immigration consultants.

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