Education
Briefing: what is leave outside the rules?
Anyone whose life consists of daily references to the immigration rules will tell you that the experience can feel a lot like deep ocean exploration in the Mariana Trench: despite constant research, you will still make new discoveries, even when you think there are no further depths to which you can sink.
And like the Mariana Trench, the complexity of the immigration rules is matched only by the ungodly pressure they exert on those who dwell within them. The rules are widely considered to be inflexible and unforgiving — qualities that often result in harsh outcomes for individual migrants.
For many people, however, complying with the onerous requirements of the rules is not even an option. Some people who wish to enter or stay in the UK simply do not fit into any immigration category, no matter what they do.
For these would-be aquanauts, there may be another option: applying for leave outside the rules. This is a general term that takes in all types of permission to live in the UK granted otherwise than in accordance with the immigration rules, instead being based on the Home Secretary’s residual discretion under the Immigration Act 1971.
“Residual discretion” does not mean that Home Office civil servants can grant leave outside the rules in any case that takes their fancy. Although leave outside the rules comes in different varieties, which we’ll outline in this post, they all come with strict policies on when they can be granted.
The various types of leave outside the rules have sprung up piecemeal to achieve different objectives, although many have since been incorporated into the rules as we will see below.
Leave outside the rules – discretionary leave
Discretionary leave is a type of leave granted outside of the rules in accordance with published Home Office guidance.
Like many other aspects of immigration law, this category underwent a seismic shift in 2012. We discuss the rules that apply to people who first secured discretionary leave before July 2012 at the end of this section.
For new applicants, the current policy guidance states:
Discretionary Leave (DL) must not be granted where an individual qualifies for leave under the Immigration Rules or for Leave outside the Rules (LOTR) for Article 8 reasons. It only applies to those who provide evidence of exceptional compassionate circumstances or there are other compelling reasons to grant leave on a discretionary basis.
The guidance document goes on to describe the two main sub-categories of post-2012 discretionary leave, which are as follows.
Article 3 medical cases
This is a category of leave outside the rules stemming from the case of D v United Kingdom (1997) 25 EHRR 423. In that case, the European Court of Human Rights held that expelling D to St Kitts would have breached his Article 3 right against torture and inhuman or degrading treatment.
That was because D suffered from HIV/AIDS. He would have faced imminent death without social or medical assistance in his home country, which at the time had very limited treatment facilities.
Replicating D’s successful reliance on Article 3 has proved difficult for subsequent applicants, particularly in light of the later case of N v United Kingdom (2008) 47 EHRR 39. In effect, only “deathbed” cases qualified.
Some hope was given to applicants seeking to resist removal on medical grounds following the 2016 decision of Paposhvili v Belgium (application no. 41738/10). Paposhvili broadened the criteria to include cases where the applicant’s death was not imminent but where removal would cause a significant deterioration in their condition.
The conflict between this test and the harsher domestic authority of N v UK was resolved by the Supreme Court in the case of AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17, in which the court endorsed Paposhvili v Belgium.
You can read more about this type of application on Free Movement here, here and here.
Non-asylum applicants should make this application on form FLR(HRO).
Applications made on Article 3 grounds are wholly exempt from charge — there is no application fee or Immigration Health Surcharge — so there is no need to apply for a fee waiver when applying on this basis.
There is separate Home Office guidance on Article 3 medical claims, in addition to the overview given in the discretionary leave guidance. It states:
Where a claimant makes an application to remain in the UK on medical grounds in which Article 3 of the ECHR is cited alongside other articles of the ECHR, the whole application will be uncharged provided the claim in respect of Article 3 constitutes a genuine basis of the application and has a realistic prospect of success, when considered against the very high threshold that applies (as set out in this guidance).
Where medical issues have been cited alongside other Article 8 family issues, for example an established private life, and the medical issues do not reach the medical claims threshold, the application must be rejected if payment of the fee for an Article 8 application is not received (following being given the opportunity to make the payment).
These types of cases can also be considered as part of an asylum application, in which case no separate application is necessary. The applicant or their representative just needs to refer to the Article 3 medical issues as part of the asylum claim.
Modern slavery and trafficking cases
This is another sub-category of post-2012 discretionary leave. You can find the relevant Home Office guidance here and here.
All decisions on this type of discretionary leave are made by the single competent authority or immigration enforcement competent authority, an arm of the Home Office that deals with human trafficking.
Where the single competent authority has recognised someone as a victim of slavery or trafficking — that is, where it decides there are “conclusive grounds” to believe that this is the case — that person may be eligible for leave.
But a positive finding of this kind does not automatically lead to a grant of leave. Something additional is required. You can read more about how well this policy is working here.
Pre-30 January 2023 cases
Where someone has received a positive conclusive grounds decision and made an asylum claim or lodged further submissions based “in material part” on a well-founded fear of re-trafficking, and there is no final determination, they potentially qualify for discretionary leave under the previous policy.
The guidance says:
The Upper Tribunal case of SSA (Ethiopia) v Secretary of State for the Home Department [2023] gave further guidance on the meaning of when an asylum or protection claim is trafficking-related. The Upper Tribunal said that the outstanding asylum or protection claim must be based “in a material part” on a fear or risk of re-trafficking in order for an individual to be eligible for leave to remain under the KTT judgement.
This is a low threshold, and it does not mean that the fear or risk of re-trafficking must be a substantial part of the claim. The Upper Tribunal said that it would suffice that “a fear of re-trafficking is articulated to the extent that the respondent is bound to consider it.” No distinction is drawn between the reasons given for the claim by a claimant themselves and those put forward by their legal representative or immigration advisor.
Since 30 January 2023 grants of leave as a confirmed victim of trafficking have been brought into the immigration rules, under Appendix Temporary Permission to Stay for Victims of Human Trafficking or Slavery. Those rules also provide for those previously granted discretionary leave to extend their stay under this route:
Individuals who already have permission to stay as a victim of human trafficking or slavery, or as their child dependents, or who have been granted Modern Slavery Discretionary Leave as a victim of human trafficking or slavery, or as their child dependents can apply to extend their permission under this route.
Discretionary leave pre-2012
Like many other aspects of immigration law, discretionary leave underwent a seismic shift in 2012. Before 2012, discretionary leave could be granted on all human rights grounds, including Article 8 grounds based on family ties or length of residence in the UK.
For people who entered this route before July 2012, the guidance contains transitional provisions:
Those granted leave under the DL policy in force before 9 July 2012 will normally continue to be dealt with under that policy through to settlement if they continue to qualify for further leave on the same basis as their original DL was granted (normally they will be eligible to apply for settlement after accruing 6 years’ continuous DL […]
As anyone in the pre-2012 route is typically granted three years of leave at a time (rather than two-and-a-half) and is eligible to settle after six years (rather than ten) the ability to remain in this route until settlement carries significant advantages.
For those lucky few, the application to extend is made on form FLR(DL) if discretionary leave was granted following a refusal of asylum, or form FLR(HRO) in all other cases. It is possible to apply for a fee waiver.
These applications can even be made after the expiry of leave and the guidance states that “the fact that the application was late should not, on its own, be used as a reason to refuse further leave”. An extension application made out of time will however mean restarting the clock on the continuous period of leave required to qualify for settlement.
In terms of applying for settlement, also known as indefinite leave to remain, following six years of continuous discretionary leave, the right form to use again depends on how the discretionary leave was granted. If discretionary leave was first granted following a refusal of an asylum claim, the form is again FLR(DL), despite “FLR” standing, rather unhelpfully, for “further leave to remain”. In all other circumstances, the appropriate form is SET(O). Fee waivers are not available for indefinite leave to remain applications.
Assuming the circumstances in which discretionary leave was first granted continue and there are no reasons such as criminality that would make restricted leave or even outright refusal more appropriate, extension and settlement applications are reasonably straightforward. Of course, the Home Office will never actually tell you the basis on which discretionary leave was originally granted so a degree of guesswork is required when assessing eligibility.
Leave outside the rules – “compelling compassionate grounds”
Moving away from the island of discretionary leave and into the deeper waters of general leave outside the rules, this is essentially a miscellaneous category for applicants who cannot apply on any other basis outside the rules. The relevant guidance states:
Leave outside the rules on compelling compassionate grounds may be granted where the decision maker decides that the specific circumstances of the case includes exceptional circumstances. These circumstances will mean that a refusal would result in unjustifiably harsh consequences for the applicant or their family, but which do not render refusal a breach of ECHR Article 8, Article 3, refugee convention or other obligations.
Applications on this basis will only be considered if the person does not come under the immigration rules, or any other type of leave outside the rules.
The guidance is short on detail but does provide two extremely overlapping examples of when someone might qualify:
- emergency or unexpected events
- a crisis, disaster or accident that could not have been anticipated
The guidance, unusually, states that the applicant has a choice of forms: FLR(HRO) or FLR(IR). As form FLR(IR) is intended for applicants applying under the immigration rules — hence the name — it would appear that FLR(HRO) is more suitable, though nothing turns on this.
This is a paid application, although a fee waiver is possible.
The period of leave granted depends on the facts of the case. Where only a short grant of leave is required to overcome or mitigate the emergency in question, this is what the applicant can expect to receive. It may be possible to extend this leave but the Home Office is likely to take the view that long periods of leave are not required to deal with an emergency.
It is also possible to apply for indefinite leave to remain, though the sheer number of qualifiers in this sentence from the guidance suggests that applicants will very rarely – if ever – succeed:
However, there may be an exceptionally unusual case where ILR is the only viable option, because a short period of leave is not appropriate because there are the most exceptional compelling compassionate grounds.
Most applicants, no matter how sympathetic, are likely to struggle to show that they have “the most exceptional compelling compassionate grounds”, at least to the satisfaction of the Home Office. However, the Court of Appeal in R (SM and TM and JD and Others) v Secretary of State for the Home Department [2013] EWCA 1144 has held that where the applicant is a child in care, at least, there is no “exceptionality” requirement.
Leave outside the rules – asylum cases
Leave outside the rules is also an option for some asylum entry clearance cases. The Home Office family reunion guidance confirms that a grant of leave outside the rules will be considered where an application raises compelling and compassionate grounds, which are “broadly speaking, exceptional circumstances that warrant a grant of discretionary leave for a non-Article 8 reason.” We covered tips for making these types of applications here.
Applying for leave outside the rules may also be an option in other exceptional cases. For example this has been used by Afghan nationals who fall outside the remit of the Afghan Relocations and Assistance Policy, or who do meet the requirements but wish to include a request for leave outside the rules in the alternative.
Separated Afghan families wishing to reunite in the UK can also apply for leave outside the rules; Afghan citizens in the UK under ARAP do not have refugee status, so cannot sponsor family members under the refugee family reunion rules. Instead, the Home Office ARAP guidance says that valid applications submitted under Appendix FM that do not meet the rules will be considered for a grant of leave outside the rules. The Home Office also directed Afghan families who were separated during Operation Pitting to apply for leave outside the rules.
Leave outside the rules – Grenfell Tower survivors
Following the Grenfell Tower fire on 14 June 2017, the Home Office created a concession for survivors of the tragedy to be granted leave to remain outside the rules. The deadline for application was 31 January 2018, but the guidance contains provisions for extensions of leave:
Individuals who were eligible under the policy were granted an initial 12 months’ limited leave. Within 28 days of the end of the 12-month period of leave, individuals can apply for free for a further period of 2 years’ limited leave under the dedicated policy. They will then be able to apply for a further period of 2 years’ limited leave, before being eligible to apply for indefinite leave to remain (ILR) after 5years’ lawful residence under the policy. Those granted leave under the Grenfell survivors’ policy will be granted with access to public funds and rights to work in the UK.
This category is closed to new applicants. However it may be possible to apply for leave on this basis, even after the 31 January 2018 deadline has passed:
Although the deadline has now passed, if anyone comes forward for an initial grant of leave who has a good reason for not having done so earlier, they should apply for leave on the FLR(HRO) form. In such cases you must refer to the LOTR guidance and consider them sympathetically for leave to remain under that policy, which caters for compelling compassionate grounds.
As the reference to “compelling compassionate grounds” suggests, this takes us back to the route outlined in the previous section. In such cases, it is necessary to explain why the application was not made earlier and provide supporting documents to evidence the reason, if possible.
Although still provided for in the guidance, survivors who missed the 2018 deadline and who are now applying on this basis for the first time are likely to face a difficult time getting leave unless they can show that they had a very good reason for not applying earlier.
Leave outside the rules – Article 8 family life
This is for people with family in the UK who cannot meet the main requirements for a family visa in the five year route to settlement. Categorising this basis of application as “outside the rules” has become somewhat inaccurate.
Appendix FM of the immigration rules sought to codify the leave outside the rules provisions for family members. This has had the paradoxical effect of bringing this type of leave outside the rules within the rules. Nevertheless, decisions in such cases are based on a test of proportionality under Article 8 of the European Convention on Human Rights, making them more like other applications outside the rules than a typical application within the rules.
Appendix FM has always allowed for leave to be granted where some of the standard requirements — such as the financial requirement or the English language requirement — are not met, but where additional requirements — such as insurmountable obstacles to family life continuing abroad or a parental relationship with a “qualifying child” — are met. Those going down this route will be relying on paragraph EX.1 of Appendix FM, and will be on a ten-year path to settlement rather than the usual five.
In addition, following the case of MM (Lebanon) [2017] UKSC 10, Appendix FM was amended to include broader provisions for leave to be granted where an applicant cannot meet the substantive provisions of these routes but where, in effect, there would be a breach of the Article 8 right of the applicant or their family if they were refused.
Paragraph GEN.3.2(2) now states that:
… the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application.
For more details on making these applications, see our posts “How to avoid the minimum income requirement for partners under Appendix FM” and “Exceptional circumstances in a spouse or partner visa application under Appendix FM“
Leave outside the rules – Article 8 private life
As is the case with family life applications, leave to remain that was previously granted outside the rules on private life grounds has been incorporated into the immigration rules, while retaining the principal characteristics of an outside the rules application. Appendix Private Life of the immigration rules covers private life — that is, where the basis of the application is the applicant’s integration and ties to the UK. See our briefing on the private life route for further details.
Conclusion
Leave outside the rules has been reduced considerably through incorporation into the immigration rules over the past decade or so. What the remaining categories have in common, however, is high refusal rates. In many cases, the applicant is required to meet criteria no less prescriptive than those found in the immigration rules.
Attempting an application outside the rules is rarely a good idea in circumstances where an applicant has a viable alternative under the immigration rules. And even where there is no other option, it is always a good idea to seek legal advice first.
With thanks to Katherine Soroya of Turpin Miller for her help with some of the legal issues involved in cases of modern slavery and human trafficking.
