Discretionary leave to remain is permission granted outside the Immigration Rules, where no route fits but removal would still be wrong. It is given sparingly — most often on medical grounds, to recognised victims of modern slavery, and to unaccompanied children. This guide explains what it is, how it differs from the private life route and from the old exceptional leave, who receives it, what it leads to, and how to apply.
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Understanding Discretionary Leave to Remain in the UK
With asylum grant rates falling to 48% at initial decision in the year ending June 2025 down from 58% the previous year and 77% in September 2022, understanding discretionary leave pathways becomes increasingly important for individuals whose circumstances fall outside standard refugee or humanitarian protection criteria yet demonstrate genuine need for UK residence. The Nationality and Borders Act 2022 introduced higher standards of proof for protection claims, resulting in dramatic grant rate decreases for certain nationalities including Afghan claims dropping from 96% to 40% within twelve months, creating circumstances where discretionary leave consideration may provide alternative legal pathways for those with compelling personal situations.
Discretionary leave applications require careful navigation of complex legal frameworks distinguishing between leave granted under the Immigration Rules, leave outside the rules for Article 8 human rights reasons, and genuine discretionary leave based on exceptional circumstances. The March 2025 Home Office guidance updates following the landmark KTT and VLT Court of Appeal judgments significantly impact modern slavery victim considerations, while the April 2025 CPH judicial review decision found existing guidance unlawful regarding discretionary indefinite leave for children, demonstrating the rapidly evolving legal landscape requiring expert assessment of individual eligibility and strategic application approaches.
Following the R (CPH) v Secretary of State for the Home Department [2025] EWHC 848 (Admin) judgment, the High Court declared Home Office guidance on discretionary indefinite leave for children unlawful for failing to comply with Section 55 duty to consider children's best interests as a primary consideration. This landmark decision requires the Home Office to reconsider its approach to discretionary grants for qualifying children, potentially opening new pathways for those previously blocked from indefinite leave on costs grounds.
What Is Discretionary Leave to Remain and When Is It Granted
Discretionary leave to remain UK represents a form of immigration permission granted outside the standard Immigration Rules when the Home Office determines exceptional circumstances warrant allowing an individual to stay despite not qualifying under established visa categories. First introduced in April 2003 alongside humanitarian protection to replace the former Exceptional Leave to Remain category, discretionary leave serves as a mechanism of last resort for cases demonstrating compelling compassionate grounds that would make removal from the UK inappropriate or unlawful under human rights obligations.
The Secretary of State exercises residual discretion under the Immigration Act 1971 to grant discretionary leave when circumstances do not meet requirements for asylum, humanitarian protection, or family and private life routes under Appendix FM and Appendix Private Life, yet sufficiently compelling factors justify continued UK residence. Home Office guidance published August 2025 emphasises that discretionary leave should not undermine the objectives of the Immigration Rules or create parallel systems for those failing to meet standard requirements, maintaining its exceptional nature as a genuinely discretionary concession rather than an alternative pathway for ineligible applicants seeking to circumvent normal immigration controls.
Circumstances Where Discretionary Leave May Be Considered
| Category | Applicable Circumstances | Key Requirements | Typical Duration |
|---|---|---|---|
| Medical Cases (Article 3) | Serious health conditions where return would breach inhuman or degrading treatment protections | Evidence of unavailable treatment in country of origin; extremely high threshold | 30 months standard |
| Modern Slavery Victims | Confirmed trafficking or slavery victims with positive conclusive grounds decision | Personal circumstances necessitating stay; police cooperation; compensation pursuit | 30 months standard |
| Unaccompanied Children (UASC) | Minors without adequate reception facilities in country of origin | Under 17.5 years; no suitable care arrangements abroad; Section 55 welfare duty | Until age 17.5 |
| Other ECHR Breaches | Return would flagrantly deny ECHR rights beyond Article 3 humanitarian protection | Extremely rare circumstances; not warranting full humanitarian protection | 30 months standard |
| Exceptional Circumstances | Paragraph 353B cases where removal no longer appropriate despite exhausted appeals | Compelling individual factors; significant UK residence period for reasons beyond control | 30 months standard |
Crucially, discretionary leave cannot be granted where an individual qualifies for asylum, humanitarian protection, or leave under family or private life provisions of the Immigration Rules. The hierarchical approach requires caseworkers to first consider whether applicants meet requirements under existing rule-based categories before assessing discretionary leave eligibility, ensuring this exceptional concession remains appropriately limited rather than becoming a default alternative for those failing standard requirements. Applications must be made from within the UK using appropriate forms, as discretionary leave cannot be applied for from overseas locations.
Discretionary Leave and the Private Life Route
Discretionary leave and the private life route are often searched for together, and they are not the same thing. Appendix Private Life sits inside the Immigration Rules and sets out when a person’s private life in the UK — length of residence, the ties formed here, the position of a child — founds a claim to stay. Discretionary leave sits outside the Rules, and is reached only where the Rules, Appendix Private Life among them, do not provide for the case.
The order matters in practice. A caseworker considers the Rules first; discretionary leave is what remains where the Rules give no answer but removal would still be unlawful or plainly inappropriate. If your circumstances fit Appendix Private Life, that is the route to argue, and a grant under it carries the settlement timetable set by the Rules rather than the discretionary one.
Exceptional Leave to Remain and How It Differs
Exceptional leave to remain was the discretionary grant used before April 2003, when discretionary leave and humanitarian protection replaced it. Those older grants did not lapse, and people still hold exceptional leave today. If your grant letter says exceptional leave rather than discretionary leave, the route to indefinite leave turns on the terms of that grant and the policy in force when it was made, not on the current discretionary leave rules. It is worth establishing which you hold before applying, because the qualifying period can differ.
Discretionary Leave Categories: Medical, Modern Slavery, and UASC Cases
Medical grounds discretionary leave engages Article 3 ECHR protections against inhuman or degrading treatment where an individual's serious health condition would result in particularly egregious outcomes if returned to their country of origin. The threshold for successful medical claims remains extremely high following established case law.
Applicants must demonstrate that return would expose them to serious, rapid, and irreversible decline in health leading to intense suffering or significantly reduced life expectancy due to unavailability of essential medical treatment. The Home Office guidance published August 2025 confirms medical claims must be assessed in line with guidance on medical claims under Articles 3 and 8 of the ECHR, with caseworkers considering medical evidence, treatment availability abroad, and individual circumstances.
Modern slavery victim discretionary leave underwent significant changes following the Court of Appeal judgment in EOG & KTT v Secretary of State for the Home Department [2022] EWCA Civ 307. The court found the Home Office approach incompatible with Article 14(1)(a) of the European Convention Against Trafficking requiring consideration of whether a victim's stay is necessary owing to their personal situation.
Confirmed trafficking victims with positive conclusive grounds decisions from the National Referral Mechanism may qualify for discretionary leave based on personal circumstances including helping police with enquiries, pursuing compensation claims, or other compelling factors necessitating UK residence. The March 2025 guidance updates confirm a temporary pause on certain modern slavery decisions pending the Court of Appeal judgment in SSHD v S & VLT [2025] EWCA Civ 188 concerning deportation proceedings, demonstrating the rapidly evolving legal landscape requiring specialist assessment.
Section 55 Duty and Children's Best Interests
Applications involving children require careful consideration under Section 55 of the Borders, Citizenship and Immigration Act 2009, which places statutory obligation on the Secretary of State to safeguard and promote the welfare of children in the UK when exercising immigration functions. This duty requires caseworkers to treat children's best interests as a primary consideration when making decisions affecting them, including determinations about discretionary leave duration and conditions. For unaccompanied asylum-seeking children refused protection but without adequate reception facilities in their country of origin, discretionary leave may be granted until they reach 17.5 years of age, recognising their vulnerability and care needs pending adult reassessment of their circumstances.
The April 2025 High Court judgment in R (CPH) v Secretary of State for the Home Department [2025] EWHC 848 (Admin) significantly impacts discretionary leave considerations for children. The court declared the Home Office guidance on discretionary grants of indefinite leave to remain unlawful for failing to properly comply with Section 55 duty.
The court found no evidence that the child's best interests were treated as a primary consideration, with "no explanation at all" of how the decision-maker balanced those interests against fee charging policies. This landmark decision requires the Home Office to reconsider its approach to discretionary indefinite leave for qualifying children, potentially creating new pathways for those previously blocked from settlement on costs grounds. The judgment emphasises the paramount importance of properly documented best interests assessments in all decisions affecting children seeking settlement and citizenship through discretionary routes.
Modern Slavery Case Law Developments Following KTT
- KTT Judgment (2022): Court of Appeal determined Home Office approach incompatible with ECAT Article 14(1)(a), requiring consideration of whether victim's stay is necessary owing to personal situation
- SSA (Ethiopia) Guidance (2023): Upper Tribunal clarified when asylum or protection claims are "trafficking-related" for KTT discretionary leave consideration purposes
- VLT Proceedings (2025): Court of Appeal judgment in SSHD v S & VLT [2025] EWCA Civ 188 addresses deportation cases, with temporary pause on affected decisions pending policy review
- Curtailment Provisions: Leave may be curtailed where circumstances justifying grant no longer apply, including where outstanding asylum claims are finally determined
- January 2023 Changes: Introduction of Temporary Permission to Stay for trafficking victims created separate pathway from traditional discretionary leave framework
Settlement Routes: 6-Year Transitional or 10-Year Standard Pathways
Settlement eligibility from discretionary leave depends on when the initial grant was made, with two distinct pathways applying based on the 9 July 2012 policy change date. The transitional 6-year route applies to individuals granted discretionary leave before 9 July 2012, allowing them to apply for further discretionary leave on the same basis that would have applied previously. Under this route, someone granted three years' discretionary leave before that date may apply for a further three-year period, becoming eligible for settlement after completing six years' total discretionary leave, providing a shorter pathway to indefinite leave to remain than the standard 10-year requirement.
The 10-year standard route applies to discretionary leave granted on or after 9 July 2012, requiring individuals to complete 120 months (10 years) continuous limited leave before becoming eligible for settlement. Grants are typically made for 30 months (2.5 years), requiring four successful extension applications before reaching the 10-year settlement threshold.
However, the Home Office guidance confirms that caseworkers have discretion regarding leave duration based on individual circumstances. Particularly compelling cases may receive longer initial grants including, in exceptional circumstances, immediate indefinite leave to remain where factors justify departing from the standard 30-month approach. Applications for further discretionary leave must be submitted no more than 28 days before existing leave expires using appropriate forms to maintain continuous lawful residence.
Discretionary Leave Settlement Requirements and Pathway Comparison
| Aspect | 6-Year Transitional Route | 10-Year Standard Route |
|---|---|---|
| Eligibility | Initial grant before 9 July 2012 | Initial grant on or after 9 July 2012 |
| Settlement Period | 6 years continuous discretionary leave | 10 years (120 months) continuous leave |
| Typical Grant Duration | 3 years per grant (2 applications) | 30 months per grant (4 applications) |
| Long Residence Alternative | May combine with other lawful residence | 10-year long residence often faster route |
| Original Grounds Required | Must continue meeting grant criteria | Original circumstances must still apply |
Importantly, most applicants on the 10-year route may achieve indefinite leave to remain earlier through the 10-year long residence category under Appendix Continuous Residence. They can combine previous lawful residence periods from other immigration categories toward the 10-year continuous residence requirement.
This alternative pathway may prove more efficient for those whose discretionary leave period, combined with earlier visa categories, reaches the 10-year threshold before completing 10 years solely on discretionary leave. Strategic assessment of an individual's complete immigration history helps identify the most efficient settlement pathway, whether through the discretionary leave policy or alternative long residence provisions.
Application Process: Fees, Forms, and Evidence Requirements
Discretionary leave applications from within the UK require submission using the FLR(HRO) form – Further Leave to Remain (Human Rights and Other Routes) – available through the official gov.uk application portal. The FLR(HRO) form covers human rights claims, leave outside the rules, and other circumstances not addressed by specific route applications such as FLR(M) for spouses or FLR(FP) for family and private life applications. As of 2025, the standard application fee is £1,033 per applicant, with each dependent included in the application incurring an additional £1,033 fee plus a £19.20 biometric information processing charge per person.
Applicants must also pay the Immigration Health Surcharge providing NHS access during their UK stay, currently £1,035 per year for most adult applicants calculated for the entire visa duration payable upfront. For a standard 30-month discretionary leave grant, the IHS payment totals £2,587.50 (30 months at £1,035 annual rate), creating substantial total application costs when combined with the base fee and biometric charges. However, fee waiver provisions exist for those demonstrating inability to afford costs due to financial hardship. Home Office guidance confirms fee waiver applications must be submitted and approved before making the main FLR(HRO) application, requiring evidence of destitution or financial hardship preventing payment of fees and the Immigration Health Surcharge.
2025 Discretionary Leave Application Costs Summary
- FLR(HRO) Application Fee: £1,033 per applicant (main applicant and each dependent)
- Biometric Enrolment Fee: £19.20 per person for fingerprint and photograph processing
- Immigration Health Surcharge: £1,035 per year adult rate; £776 per year for under-18s; calculated for full visa duration
- Total for 30-Month Grant (Single Adult): Approximately £3,639.70 (application + biometrics + IHS)
- Home Office Fee Waiver Availability: Must be applied for separately before main application if demonstrating financial hardship or destitution
- Premium Services: Same-day visa service available at UK premium service centres for extensions and settlement applications
Evidence Requirements for Discretionary Leave Applications
Successful discretionary leave applications require comprehensive documentary evidence supporting the specific grounds claimed. Medical cases demand detailed reports from treating consultants confirming diagnosis, prognosis, treatment requirements, and impact of removal on health outcomes, alongside evidence regarding treatment availability in the country of origin.
Modern slavery victims require documentation of their National Referral Mechanism conclusive grounds decision, evidence of ongoing police cooperation or compensation proceedings, and supporting statements explaining why their personal situation necessitates continued UK residence. UASC cases require evidence regarding age, absence of adequate reception facilities abroad, and welfare assessments demonstrating the child's best interests favour remaining in the UK.
All applications should include comprehensive identity documentation (passport or travel document), evidence of current and proposed residential address, and financial information demonstrating ability to support oneself without recourse to public funds (unless exempted). Detailed witness statements explaining the exceptional circumstances justifying discretionary leave consideration are essential.
Where applications follow visa refusal or relate to ongoing removal proceedings, applicants should address previous adverse findings while presenting new evidence or changed circumstances warranting fresh consideration. Given the discretionary nature of this leave category, applications benefit from thorough legal assessment identifying the strongest grounds and most compelling evidence presentation strategies.
Frequently askedQuestions about discretionary leave to remain
What is discretionary leave to remain UK and how does it differ from other immigration status?
Discretionary leave to remain UK is immigration permission granted outside standard Immigration Rules when exceptional circumstances prevent applicants qualifying under normal visa categories yet compelling factors justify UK residence. Unlike asylum or humanitarian protection granted under the Rules, discretionary leave represents the Secretary of State's residual discretion under the Immigration Act 1971, used sparingly for medical cases engaging Article 3 ECHR, modern slavery victims, unaccompanied children, and other exceptional circumstances where removal would be inappropriate despite not meeting protection criteria.
How long does discretionary leave UK last and can it lead to settlement?
Discretionary leave is typically granted for 30 months (2.5 years) and can lead to settlement after 10 years continuous limited leave for grants made on or after 9 July 2012, requiring four successful extension applications. Those granted discretionary leave before 9 July 2012 may qualify for settlement after 6 years under transitional arrangements. Caseworkers have discretion regarding duration based on individual circumstances, meaning particularly compelling cases may receive longer grants including immediate indefinite leave in exceptional circumstances.
What form do I use to apply for discretionary leave UK and where do I submit it?
Applications for discretionary leave must be made from within the UK using the FLR(HRO) – Further Leave to Remain (Human Rights and Other Routes) form, available online through gov.uk. This form covers human rights claims, leave outside the rules, and circumstances not addressed by specific route applications. Applications cannot be made from outside the UK. Those seeking fee waiver must submit separate applications before the main FLR(HRO) submission demonstrating financial hardship.
Can discretionary leave be curtailed or cancelled?
Yes, discretionary leave may be curtailed if circumstances justifying the grant no longer apply, the individual engages in criminal activity, poses a national security threat, or obtained leave through deception. For modern slavery victims granted KTT discretionary leave, curtailment may occur when outstanding asylum claims are finally determined. Senior caseworker approval is required before curtailment action, and the Home Office may pursue deportation or grant restricted leave instead where continued residence is no longer appropriate.
Tell us the date of the grant, how long the leave runs and the basis it was given on. We will tell you which settlement route that period counts towards, and when you can apply.
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