Discretionary Leave to Remain

Last year, The Independent newspaper carried out an investigation that found that the number of people that are waiting longer than the Home Office’s target times for their immigration claims to be processed is on the rise. With cases of families waiting anxiously to find out if they can stay together in the UK under discretionary leave to remain, leaving these people in a state of limbo is unacceptable. The figures showed that the proportion of UK settlement applications taking more than six months to resolve has almost doubled in three years. More than one in 10 applicants were found to have waited for longer than the Home Office’s own six-month customer service standard before receiving a decision in 2017, compared with 6 percent in 2014. This is also despite the fact that the number of applications processed decreased by a fifth in this same period, from 95,651 to 74,952.

What is discretionary leave to remain?

Discretionary leave to remain employs the benefits of a human rights act known as ‘Article 8’ to allow you to stay in the UK if you are in a situation where it would be unreasonable to expect you to leave your family and your personal life. The majority of people who are applying for this leave to remain are in positions where they really cannot leave their families and the lives that they have in the UK, and so the incredibly long wait times are incredibly worrying for them. 

What is Article 8?

Article 8 protects your right to respect for your private life, your family life, your home and your correspondence (letters, telephone calls and e-mails). You have the right to live your life privately and without government interference. The courts generally interpret the idea of ‘private life’ quite broadly and therefore it covers things like your right to determine your sexual orientation, your lifestyle, the way that you look and the way that you dress. However, in the case of discretionary leave to remain, the important part is that it also covers your right to develop your personal identity and to forge friendships and other relationships. This includes a right to participate in essential economic, social, cultural and leisure activities. Most importantly, you have the right to enjoy family relationships without interference from the government. This includes your right to live with your family and, in cases where this is not possible, the right to regular contact.

How can I use Article 8 to gain Leave to Remain?

If you have established a rich family life in the UK under another visa route, then the right evidence can support an application for discretionary leave to remain. This evidence can include:

  • Registration documents for your local GP surgery
  • Proof that your children attend school in the UK
  • Statements from family, friends and neighbours

Are there any restrictions under discretionary leave to remain?

If you are in the UK under discretionary leave to remain, you will be able to have full access to public funds and will face no restrictions on being able to find and carry out work in the country. Although certain regulations mean that you are unable to apply for student finance, self-funded higher education is also available to those here on limited leave.

Discretionary leave to remain might be a very viable option for you if your current visa is due to expire and you have a secure personal life here in the UK. Getting in touch with qualified immigration solicitors will allow you to establish this and start the application process.