In the codified structure of United Kingdom immigration law, the Immigration Rules are intended to be comprehensive. They provide specific, rigid criteria for entry and residence. However, the drafters of legislation cannot foresee every human eventuality. There exist scenarios where an individual fails to meet the standard requirements for a visa, yet their removal from the UK would be unjust, dangerous, or a breach of the UK’s international obligations. In these rare and complex instances, the Secretary of State exercises a residual power known as Discretionary Leave to Remain.
It is imperative to understand that this is not a standard visa category. One does not simply "choose" to apply for it in the same way one selects a Skilled Worker visa. It is a remedy of last resort. It operates outside the Immigration Rules (LOTR), relying on the compassionate discretion of the Home Office. Consequently, the threshold for success is exceptionally high.
Immigration Solicitors4me view applications for Discretionary Leave to Remain as high-level legal advocacy. They require a departure from standard form-filling and a move toward forensic legal argumentation. We must prove that your case is not merely difficult, but truly exceptional. This guide provides a professional analysis of when this discretion applies and how to structure a successful claim.
The Legal Evolution of Discretion
Historically, Discretionary Leave to Remain was a broad category used for many human rights cases. However, following the restructuring of the Immigration Rules (specifically the introduction of Appendix FM), many "family life" cases that used to fall under discretion are now codified under the 10-year partner/parent routes.
Today, DLR is reserved for a narrower set of circumstances:
- Medical Cases (Article 3):Where removal would breach the prohibition on inhuman or degrading treatment due to severe illness.
- Modern Slavery:For victims of trafficking who need to remain in the UK for recovery or to assist police.
- Exceptional Circumstances:Where the refusal would result in "unjustifiably harsh consequences" not covered by Appendix FM or Private Life rules.
- Exclusion Cases:Where an individual cannot be removed (e.g., due to a barrier in their home country) but is excluded from refugee status due to serious criminality.
Understanding this evolution is critical. Applying for DLR on simple family grounds when you should be applying under Appendix FM will lead to a refusal. Strategic classification of the claim is the first step.
Medical Grounds: The Threshold of "Inhuman Treatment"
One of the most litigated areas for Discretionary Leave to Remain involves serious health conditions. The legal test is derived from Article 3 of the ECHR. For years, this threshold was virtually impossible to meet (N v UK), requiring the applicant to be on their deathbed. However, the Supreme Court judgment in AM (Zimbabwe) [2020] lowered this threshold slightly. The New Test: The applicant must prove that the absence of appropriate medical treatment in the receiving country would lead to a "serious, rapid and irreversible decline" in their health, resulting in intense suffering or a significant reduction in life expectancy.
Strategic Evidence: This is a forensic medical inquiry. A letter from a GP is insufficient. We commission detailed reports from consultants outlining the prognosis if treatment stops. Crucially, we must also provide objective country evidence (from NGOs or the World Health Organization) proving that the specific treatment is unavailable or inaccessible in the home country.
Modern Slavery and Trafficking
The UK has specific obligations under the Council of Europe Convention on Action against Trafficking in Human Beings. If an individual is identified as a victim of modern slavery (via the National Referral Mechanism - NRM), they do not automatically get a visa. They must apply for Discretionary Leave to Remain based on their specific needs. Grounds for granting leave include: