It’s a common question for visa applicants: is there any discretion under the rules if their application to come to or remain in the UK is refused? Sometimes, leave can be granted outside the Rules.
The UK’s Immigration Rules are complex and detailed and are there to cover the majority of applications seeking entry to this country. However, the Secretary of State has the power to grant leave to enter or remain outside these rules on a discretionary basis. The power to do this comes from a residual discretion under the Immigration Act 1971.
In the first two decades of the 21st century, the legislation was changed to include most family and private life cases within the Immigration rules. Consequently, exceptional circumstances cases can still be brought under Appendix FM of the Immigration Rules, with private life cases considered outside the rules.
Thought is always given to whether the Immigration Rules are met in most material elements and whether a refusal to consent would constitute a breach of ECHR (the European Convention on Human Rights) Article 8. Each application is considered on its own merits and on a case-by-case basis.
Leave Outside the Rules (LOTR) can be granted on human rights grounds where the specific circumstances of the case mean that a refusal would result in unjustifiably harsh consequences for the applicant or their family but where a refusal does not breach Article 8 or other legal/human rights obligations.
The critical factor in LOTR cases is the application of discretion, which differs on a case-by-case basis. Not all LOTR is given for the same reason. The discretion is applied in different ways depending on the unique circumstances of the case and the applicant’s specific position. Consequently, it can be hard to generalise which cases may be successful based on past decisions.
There is some guidance on discretionary leave, exceptional circumstances, and compelling compassionate grounds. LOTR is usually granted for private life or family reasons, medical reasons, and modern slavery, although this is by no means an exhaustive list.
It’s essential to understand that LOTR can only be considered in the context of a standard visa application to enter or remain in the UK on an appropriate route under the Immigration Rules. Leave Outside the Rules is not an alternative or parallel process for people who want to come to or stay in the UK.
Each case is unique and so the conditions behind the leave vary according to each applicant. Some LOTR may allow you to work or study in the UK, whereas other cases may prohibit this. Some people granted LOTR may be permitted to access public funds (state benefits), whereas others cannot.
UK immigration law is complex, and never more so than if you are looking to apply to stay in the UK on the basis of Leave Outside the Rules. It is essential to take advice from an experienced and qualified immigration professional to present your case.
An immigration expert will work with you to determine the individual circumstances of your case, assessing the material facts against the latest guidelines and previous LOTR decisions. It is almost impossible to proceed without this input; professional advice and guidance offer you the best chance of success.
WH Solicitors are experienced immigration lawyers providing a professional service to all visa applicants and particularly specialising in complex and challenging cases for applicants who may already have been refused entry and would like to make a further Outside of the Rules application.
WH Solicitors are specialists who advise on all types of visa applications and work with people who have been refused entry or leave to remain and want to make an Outside of the Rules application. Our service is both cost-effective and affordable, with no hidden charges.
Here’s how we can help.
The length of time granted under LOTR varies according to the case. The duration awarded is usually only long enough to accommodate or manage the grounds on which the case is based. Consequently, most LOTR cases result in a short and usually one-off period of leave.
All LOTR cases are allocated to a caseworker who first considers whether you are eligible for a family visa under the standard Immigration Rules. If this is not the case, then the caseworker will review whether there are any exceptions that will otherwise prevent a breach of Article 8 of the ECHR. The caseworker uses their discretion to decide if the case warrants LOTR to avoid potential violations under Article 8 or other human rights infringements or consequences.
WH Solicitors offers all visa applicants the reassurance of an experienced team of immigration experts who provide advice and guidance throughout every stage of the process, whether your application is straightforward or Outside of the Rules. Our support is informative, relevant, and practical, and there is always a friendly face during what is invariably a stressful and anxious time. We will represent your case from start to finish with the Home Office or caseworker with a cost-effective and affordable service.
The contents of this webpage are provided for informational purposes only and are not intended to constitute legal advice. All information is correct as of the date of publication, and any individual or organisation should be careful to seek qualified advice from a specialist immigration lawyer before acting on any of the topics referenced by this content.
