In this Article we explore Leave Outside the Immigration Rules (LOTR) and when it may be appropriate for the Secretary of State to exercise her discretion to grant leave outside the Immigration Rules.
We will also examine what the Secretary of State will consider when assessing entry clearance, Leave to Remain and Indefinite Leave to Remain applications.
The Home Office policy document entitled Leave outside the Immigration Rules guidance, Version 2.0, dated 9 March 2022 provides:
“Guidance for decision makers considering leave outside the Immigration Rules, on the basis of compelling compassionate grounds (grounds that are not related to family and private life, medical or protection matters).”
The guidance reflects that the Immigration Rules are designed to provide for the vast majority of scenarios where individuals wish to enter or remain in the UK, however, the Secretary of State has a residual discretion under the Immigration Act 1971 to grant leave.
On 9 July 2012 and 10 August 2017, legislation was changed to bring the majority of family and private life cases under Part 7 paragraph 27ADE(1) and Appendix FM of the Immigration Rules.
The guidance acknowledges compelling compassionate factors are exceptional circumstances which mean that a refusal of entry clearance or leave to remain 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 obligations.
Such factors may include:
However, LOTR will not be granted where it is considered reasonable to expect the applicant to leave the UK despite such factors.
In any application involving a child, the decision-maker will consider the impact the decision will have on any relevant child pursuant to section 55 of the Borders, Citizenship and Immigration Act 2009.
Overall, the guidance makes clear that the grant of LOTR is rare, discretionary, and not all applications are granted for the same reasons. They are decided on their own merits on a case-by-case basis.
For applicants applying from overseas or in the UK, an applicant must apply on the application form for the route that most ‘closely matches their circumstances’ and pay the relevant fees and charges.
However, for those within the UK, the guidance confirms:
“If an applicant in the UK wishes to be considered solely outside the Immigration Rules, they should apply using the further leave (human rights other) (FLR (HRO)) application form or further leave (Immigration Rules) (FLR(IR)) form. Applicants should indicate that they are applying for other purposes not covered by other application forms and should provide details, including any relevant documentary evidence explaining in more detail why they are seeking LOTR on compelling compassionate grounds”
Where the applicant is not subject to a fee exemption or concession, they must pay the relevant fees and charges. If the application is on the family and private life form, it can be accompanied by an appendix 1 fee waiver application.
The guidance provides that the period of LOTR granted will be for a duration that is suitable to accommodate or overcome the compassionate compelling grounds raised and no more than necessary.
Most grants of LOTR will be for a short period but in some circumstances, those which are particularly compelling, could be for longer. For example, Indefinite leave to enter or remain can be granted but only where the grounds are so exceptional that they warrant it.
The onus is on the applicant to evidence the factors that warrant a period of LOTR and should set out the period of leave required or requested in their application.
Conditions for limited leave should be no recourse to public funds, no work and no study.
Any deviation from this is rare and is only granted where there is sufficient evidence to show why such conditions should not be applied.
It is possible to qualify however the guidance makes it clear:
“Applicants seeking ILR outside the Immigration Rules should provide details as to why they should be granted ILR rather than limited leave. ILR is a privilege, not an automatic entitlement. Unless there are truly exceptional reasons, the expectation is that applicants should start a route to ILR and serve a probationary period of limited leave before being eligible to apply for ILR. 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”.
There will only be a right of appeal or administrative review against a decision to refuse Leave Outside the Immigration Rules where a human rights claim is refused as part of the consideration.
It is possible for removal to be deferred pending change of circumstances. The guidance confirms:
“There may be factors raised which will be sufficiently short lived, that it is proportionate to refuse the application or claim on and give an undertaking not to remove the individual or expect them to leave the UK voluntarily until the circumstances have changed. Where it is considered that the person can leave the UK within a short time of the date of decision, it will normally be appropriate to refuse the application or claim outright, not grant a period of LOTR and defer removal until such time as it is possible”.
Further leave is not automatic. When a grant of LOTR expires, there is an expectation the applicant would leave the UK unless they seek to apply under a category of the Immigration Rules. Similarly, it is important to note that a grant of LOTR does not guarantee the success of a subsequent application for LOTR.
If you want to apply for Leave Outside the Immigration Rules, based on compelling compassionate grounds, please get in touch with one of our immigration barristers on 02072423488 or complete our contact form here.
By Stefanie Alvarez, Pupil Barrister