Leave to Remain Outside the Immigration Rules
Did you know that in some cases you can make an application to stay in the UK based on leave to remain outside the immigration rules? Specialist immigration solicitors not only know the immigration rules inside out but also know when your circumstances may justify an application for leave to remain made outside the immigration rules.
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For advice on your best UK immigration options and visa applications call the expert London immigration lawyers at OTS Solicitors on 0203 959 9123 or contact us online.
What is leave to remain outside the rules?
We have all heard the saying ‘rules are rules’ but few people looking to gain UK entry clearance or to settle in the UK have heard about ‘leave to remain outside the rules’. It isn’t something that immigration solicitors have dreamed up. It is official and it has its own Home Office guidance on how Home Office officials should decide these applications.
Immigration lawyers will be the first to tell you that, if you can, you should apply for a visa where you meet the eligibility criteria, such as a spouse visa, student visa or skilled worker visa. If you don’t meet the eligibility criteria for one of those visas then a less generally well-known visa might meet your needs, such as the graduate visa or ancestry visa or BNO visa. An immigration solicitor can talk to you in detail about your personal and financial circumstances and can come up with your best UK visa and long-term settlement options.
If a check of all your immigration options draws a blank then your immigration lawyers can take a look at your best visa application and ask Home Office officials to exercise discretion and grant leave to remain outside the rules.
Leave to enter or remain outside the rules is where discretion is exercised by the Secretary of State for the Home Office and you get granted leave to enter or remain even though you don’t meet the visa or indefinite leave to remain eligibility criteria under the immigration rules. The exercise of discretion is reserved for the most exceptional and compelling of cases. So, for example, discretion won't be exercised just because you don’t meet the eligibility criteria for a skilled worker visa as your sponsoring employer isn’t willing to pay you a salary at a level equivalent to the minimum salary threshold for a skilled worker visa because they want cheap labour.
Home Office guidance on leave to remain outside the immigration rules
There is more than one Home Office guidance issued to Home Office officials on how to consider a request for leave to remain outside the immigration rules. The guidance to be used by Home Office officials depends on whether you are:
- Making a claim on the basis of compelling compassionate grounds (other than family and private life, medical, asylum or protection grounds or
- Making an application for leave to remain outside the rules based on the European Convention on Human Rights (ECHR) Article 8 family and private life grounds or Article 3 medical grounds. If you are using Article 3 or 8 you need to follow the separate guidance.
In this article, we focus on the guidance for the exercise of discretion to grant leave outside the immigration rules on the basis of compelling compassionate grounds (other than family and private life, medical, asylum or protection grounds). The Home Office guidance applies to Home Office officials considering entry clearance, leave to remain and indefinite leave to remain applications.
Compelling compassionate leave outside the immigration rules
Most leave outside the immigration rule applications are considered as part of a family application so they fall outside this Home Office guidance but leave outside the rules can be granted on ‘compelling compassionate’ grounds if the Home Office official decides the specific circumstances of your case includes exceptional circumstances. These circumstances mean a refusal would result in what are referred to as ‘unjustifiably harsh consequences for the entry clearance applicant or their family’, but the refusal would not result in a breach of either ECHR Article 8 or Article 3, in which case the alternate Home Office guidance should be used.
The grant of leave to remain outside the immigration rules is used sparingly by Home Office officials
The Home Office guidance says the grant of leave to remain outside of the rules is rare. That’s because the Home Office says discretion should be used sparingly where matters raised in an immigration application mean ‘it wouldn’t be proportionate to expect the applicant to be refused entry or to leave the UK’.
In addition, the Home Office guidance says the leave should be time limited so the leave to remain is limited to a ‘duration that is suitable to accommodate or overcome the compassionate compelling grounds raised and no more than necessary based on the individual facts of a case’. What that means is a short grant of leave in most discretionary cases but the length should be based on individual circumstances.
What is compelling compassionate?
What is ‘compelling compassionate’ is considered on a case-by-case basis but Home Office guidance says compelling compassionate circumstances are where a refusal of entry clearance or leave to remain would result in unjustifiably harsh consequences for the applicant or their family, but the refusal would not amount to a breach of ECHR Article 8, refugee convention or obligations.
In the Home Office guidance examples of compelling compassionate circumstances include:
- An emergency or an unexpected event.
- A crisis, disaster or accident that couldn’t have been anticipated.
In the application you will need to be explain why it isn’t reasonable to expect you to leave the UK or to refuse you entry to the UK. Citing the compelling factors alone won't best help you secure leave to remain outside the immigration rules.
Documentary evidence for leave to remain outside the immigration rules
When you are asking the Home Office to exercise discretion you must provide evidence in support of what you are saying. That might, for example, be evidence of a bereavement or medical reports. Any report by a doctor needs to be in the relevant field of their expertise. Often, when applicants ask the Home Office to exercise discretion, they don’t realise that the Home Office will need evidence of the emergency or the unexpected event that they have been caught up in. That’s because at the time things are obvious and overwhelming to the applicant, but not to the Home Office. Immigration solicitors can help you understand how best to prepare your application and what paperwork will best help your case.
If your application involves a child then your application will need to be prepared with a focus on the best interests of the child. The law says the child’s interests aren’t paramount but they do have to be taken into account as a primary consideration.
Can you apply for leave to remain outside the immigration rules from within the UK?
You can apply for leave to remain outside the immigration rules from within the UK or from overseas.
If you are making your application from inside the UK you need to make an application for the visa that most closely meets your circumstances but you should include the compelling compassionate circumstances that would justify the exercise of Home Office discretion. Evidence needs to be supplied as well. If you want the Home Office to not consider a visa application and to simply assess a request for leave to remain outside the immigration rules then a different application form is required [FLR(HRO) or FLR (IR)]. If you are asking the Home Office to give you indefinite leave to remain outside the immigration rules you will need to use form SET(O).
If you are making your application from outside the UK you need to make an application for a visa that most closely meets your circumstances even though you know that you won't meet the eligibility criteria for the visa unless the Home Office exercises discretion. It is important to set out the compelling compassionate factors you want the Home Office official to take into account. You also need to provide supporting documents.
Can you appeal refusal of leave to remain outside the immigration rules?
Immigration solicitors say there isn’t an automatic right of appeal in every case if your application for leave to remain outside the immigration rules is refused. The law states you only have a right of appeal or a right to request an administrative review of the decision if your application included a human rights claim. For advice on what amounts to a human rights claim talk to specialist immigration lawyers.
Applying for leave to remain outside the immigration rules is complicated as you have to prove compelling compassionate factors. It’s best to talk to an immigration solicitor as, in some cases, you may fit within the immigration rules and, if your circumstances don’t, they can help you put forward your best case to enter or remain in the UK.
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For advice on your immigration status or on any aspect of immigration law call the immigration lawyers at OTS Solicitors on 0203 959 9123 or contact us online.