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Briefing: what is leave outside the Rules?

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 leave granted otherwise than in accordance with the 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. Arguably, the main thing these applications have in common is high refusal rates. 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.

1. Leave outside the Rules – Discretionary Leave

Discretionary Leave (DL) 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 DL, which are as follows.

1(a). 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 is expected to be addressed by the Supreme Court in the case of AM (Zimbabwe) , which was heard in December 2019.

You can read more about this type of application on Free Movement here, here and here

Although the guidance states that non-asylum applicants should make this application on form FLR(O), this form has, in fact, been discontinued and this application should actually be made 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 an applicant also cites other articles of the European Convention of Human Rights (ECHR) as a reason of claim (including article 8), you will need to decide if the article 3 claim constitutes a genuine reason of claim, or if it is cited only to prevent the applicant from paying a fee. 

Provided Article 3 is a genuine basis for a claim, then the whole application (including consideration of any of the other elements of the claim) will be free. This does not mean the Article 3 claim must be one which will succeed. However, you must think it has a realistic prospect of success.

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.

1(b). Modern slavery and trafficking cases

This is another sub-category of post-2012 DL. You can find the relevant Home Office guidance here and here

All decisions on this type of DL are now made by the Single 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 DL. 

But a positive finding of this kind does not automatically lead to a grant of leave. Something additional is required.

The DL guidance states that candidates will be considered “under the criteria relating to personal circumstances, helping police with enquires and pursuing compensation detailed in the Competent Authority guidance once a positive conclusive grounds decision is issued”.

In addition, where a confirmed victim of trafficking or modern slavery applies for asylum, they will be automatically considered for a grant of DL if they are refused asylum or humanitarian protection.

There is no fee to pay and no form to fill in (contrary to some of the outdated guidance). 

1(c). Discretionary Leave pre-2012

Like many other aspects of immigration law, Discretionary Leave underwent a seismic shift in 2012. Before 2012, DL 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 DL 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 DL, the right form to use again depends on how the DL was granted. If DL 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 DL 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 DL was originally granted so a degree of guesswork is required when assessing eligibility.

2. Leave outside the Rules – Article 8 family life

Moving away from the island of Discretionary Leave and into the deeper waters of general Leave outside the Rules, we first encounter Article 8 family life cases outside the Rules. This is for people with family in the UK who cannot meet the normal requirements for a family visa.

As an aside, categorising this basis of application as “outside the Rules” is somewhat inaccurate. Appendix FM of the Immigration Rules has, in effect, codified the leave outside the Rules provisions for family members, which 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 paragraphs EX.1 and EX.2 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.

Home Office guidance about family life applications of this kind states:

‘Unjustifiably harsh consequences’ are ones which involve a harsh outcome(s) for the applicant or their family which is not justified by the public interest, including in maintaining effective immigration controls, preventing burdens on the taxpayer, promoting integration and protecting the public and the rights and freedoms of others.

Merely “harsh” outcomes won’t cut it: only “unjustifiably harsh” outcomes trigger this provision.

In practice, it is rare for the Home Office to accept that a refusal would lead to unjustifiably harsh consequences where the applicant does not already qualify under paragraphs EX.1 / EX.2. But as those paragraphs waive the financial requirement, the English language requirement and the accommodation requirement, paragraph GEN.3.2 may be relevant in cases where the applicant fails to meet a different requirement. 

Example

Starla is a Jamaican citizen in the UK with limited leave as a refugee. She is the single mother of two young children, both of whom have leave in line with her. Starla is in a relationship with Micheal, a fellow Jamaican national who is in the UK without leave to remain, with whom she has lived for just over a year. 

Because Starla and Michael are not married, and they have cohabited for less than two years, Michael does not meet the definition of “partner” under Appendix FM. Thus he cannot rely on Appendix FM to get leave to remain as Starla’s family member, even with the exemption found in paragraph EX.2.

However, Michael may be able to qualify for leave outside the Rules on Article 8 grounds if he can show that the refusal of his application would have unjustifiably harsh consequences for him, Starla or her children.

Similarly, while the exemptions in paragraphs EX.1 and EX.2 do not apply to adult dependant relatives, it is theoretically possible to rely on paragraph GEN.3.2 when making this type of application. Again, in practice, such grants are exceptionally rare.

Finally, because an application as a partner or a parent cannot be made in the ten-year route from abroad, it may be possible to rely on this provision in circumstances where the applicant is overseas and the case has exceptional features, such as British children who live in the UK.

Applications on this basis are made on form FLR(FP) in country or, if applying overseas, on this form if applying as a partner or a child, or this form if applying as an adult dependant relative or parent. The usual fees apply, though a fee waiver is possible for applications made in the UK.

3. Leave outside the Rules – Article 8 private life

Part 7 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. In similar vein to the above, Part 7 includes a catch-all provision designed to cover applications that would previously have been considered outside the Rules.

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In order to qualify, a migrant who has lived here for less than 20 years must show that there are “very significant obstacles” to his or her reintegration into their home country. 

If an applicant cannot meet these requirements, however, it may still be possible to apply outside the Rules on a private life basis under paragraph 276BE(2). Thus, leave to remain granted outside the Rules on private life grounds has similarly been incorporated into the Immigration Rules, while retaining the principal characteristics of an outside the Rules application.

Home Office guidance states where an application has been considered solely on the basis of private life in the UK, “you must consider whether there are such exceptional circumstances outside the Immigration Rules” but provides no further information.

The types of cases that might qualify for a grant of leave outside the Rules on this basis include applicants who have lived in the UK for decades but who are ineligible for leave under the Rules because the continuity of their leave was broken by an extended absence.

Similarly, there may be cases where there are no significant obstacles to an applicant’s integration back into their home country but where the strength of their ties to the UK are nevertheless such that it would be disproportionate to remove them from the UK. However, if they have lived in the UK for less than 20 years, it would be rare for the Home Office (or an immigration judge) to consider that removal is disproportionate where there are no significant obstacles to reintegration into the applicant’s country of origin, at least without additional factors such as family in the UK.

These applications are made on form FLR(FP), in common with the family life cases outside the Rules. Like almost all types of leave described here, this application cannot be made from abroad. The usual fees apply, though a fee waiver is possible.

4. Leave outside the Rules – “compelling compassionate circumstances”

This is the “miscellaneous” category for applicants who cannot apply on any other basis outside the Rules. The relevant guidance states:

LOTR 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

This little-used basis of application may be more relevant than usual during the coronavirus outbreak. Where someone is unable to return home as a result of travel restrictions or self-isolation but whose leave in the UK is not automatically extended, it may be possible to apply for leave on this basis.

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.

5. Leave outside the Rules – three-month concession for carers

This is a little-known provision designed to allow applicants to be granted a short grant of leave to remain (ordinarily, three months) to provide urgent care to a settled or British relative and, most importantly, to make arrangements for their long-term care. The guidance says that the following points are relevant to applications on this basis:

  • the type of illness/condition (this should be supported by a Consultant’s letter); and
  • the type of care required; and
  • care which is available (e.g. from the Social Services or other relatives/friends); and
  • the long-term prognosis. 

The guidance also states that although applications for leave in order to care for a sick or disabled friend should normally be refused, “in an emergency (e.g. where the patient has suddenly fallen ill and there is insufficient time to arrange permanent care or where there is nobody else in the United Kingdom to whom the patient can turn) it may be appropriate to grant leave”.

Although it is possible for further leave to be granted on this basis, the guidance is clear that it would only be in exceptional. This route is designed primarily to enable the applicant to make arrangements for long-term care — rather than as a mechanism by which someone can care for their family member on anything other than a very short-term basis. 

An applicant’s prospects of success depend largely on the severity of their relative’s condition, the urgency of their care needs and the quality of the supporting evidence. A grant of leave is more likely, for example, in cases where the relative is terminally ill and requires help with everyday tasks than in cases where the illness is less severe and the care required is emotional support rather than practical assistance.

Contrary to the guidance, which is out of date, a refusal of this application only carries a right of appeal if the First-tier Tribunal accepts jurisdiction to hear the appeal. That is only possible where it is satisfied that there has been a refusal of a human rights application, so it may be helpful to raise Article 8 (and Article 3, where relevant) grounds in the application.

Although this is not stated by the guidance, the appropriate form in this case would be FLR(HRO), if making the application in the UK. If making the application outside the UK, the relevant form is the visit visa form.

6. 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.

So although this category is closed to new applicants, those already granted leave on this basis can apply to extend it until they qualify for indefinite leave to remain after five years in total.

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 who has a good reason for not having done so earlier, caseworkers must consider them for leave to remain under our existing leave outside the rules policies, which cater 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 would be helpful to explain why the application was not made earlier and provide supporting documents to evidence the reason, if possible. 

Applicants who are already in this route can apply to extend their leave on form FLR(GT), which, rather unusually, is only available as a paper form. This application is free so there is no need to make a separate application for a fee waiver.

Where someone is already in the Grenfell route, extension and settlement applications should be relatively straightforward. 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.

Conclusion

Leave outside the Rules comes in many shapes and sizes. What most of these 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.

With thanks to Antonella Stonehouse of Turpin & Miller for her help with some of the legal issues involved in cases of modern slavery and human trafficking. 

Alex Piletska

Alex Piletska is a solicitor at Turpin & Miller, an Oxford-based specialist immigration firm where she has worked since 2017. Alex undertakes a wide range of immigration work, including family migration, Points Based System applications, appeals and Judicial Review. You can follow her on Twitter at @alexinlaw.

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