SECTION CONTENTS CHAPTER 1 SECTION 14 LEAVE OUTSIDE THE RULES (LOTR) IMMIGRATION DIRECTORATES' INSTRUCTIONS 1. INTRODUCTION

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1 April/06 IMMIGRATION DIRECTORATES' INSTRUCTIONS SECTION CONTENTS CHAPTER 1 SECTION 14 LEAVE OUTSIDE THE RULES (LOTR) 1. INTRODUCTION 1.1. Humanitarian Protection and Discretionary Leave 1.2. Leave Outside the Immigration Rules 2. APPLICATIONS 2.1. Immigration policy concessions 2.2. Particular compelling circumstances 3. GRANTS 3.1. Limited LOTR 3.2. Indefinite LOTR 4. EXTENSIONS 5. APPEAL RIGHTS 6. WORDING FOR LETTERS 6.1. Grants 6.2. Refusals 7. TRANSITIONAL ARRANGEMENTS Annex A IMMIGRATION POLICY CONCESSIONS 1

2 April/06 IMMIGRATION DIRECTORATES' INSTRUCTIONS CHAPTER 1 SECTION 14 LEAVE OUTSIDE THE RULES 1. INTRODUCTION The system of granting leave to people exceptionally outside the Immigration Rules changed on 1 April On that date, the old exceptional leave to enter/remain (ELTE/R) category was replaced with a system of leave being granted on the basis of Humanitarian Protection or Discretionary Leave. The intention is that, wherever possible, the majority of applications which fall outside the Immigration Rules will now be considered within the Humanitarian Protection and Discretionary Leave criteria. However, there are still likely to be a small number of mainly non-asylum and non-protection immigration policy concessions and categories where the Secretary of State or an immigration officer may exercise discretion and grant leave to someone who does not meet the requirements of the Immigration Rules, or the Humanitarian Protection or Discretionary Leave criteria, as well as a general discretion to grant such leave. Where a person does not qualify for leave under the Rules or the Humanitarian Protection or Discretionary Leave policies, any other leave to enter or remain must only be granted under a further category of Leave Outside the Rules (LOTR) such instances are likely to be rare. Caseworkers and immigration officers will therefore need to be familiar with the Humanitarian Protection and Discretionary Leave policies (summaries given below) Humanitarian Protection and Discretionary Leave All claims for Humanitarian Protection are considered by asylum caseworkers. Humanitarian Protection is granted where the person has protection needs but where they do not meet the criteria for refugee status. It is granted where the person would, if removed, face in the country of return a serious risk to life or person arising from: - the death penalty; - unlawful killing; or - torture or inhuman or degrading treatment or punishment. The API on Humanitarian Protection should be consulted for comprehensive and further advice. The criteria to be met for a grant of Discretionary Leave are set out in the API on Discretionary Leave. The majority of grants of Discretionary Leave are likely to be made in protection cases. There are, however, a limited number of circumstances in which a non-protection case may qualify for a grant of Discretionary Leave, for example, where removal would: - breach Article 3 of the ECHR on account of the person s medical condition; - breach Article 8 of the ECHR (right to private and family life) - most likely to 2

3 arise in marriage and, from 5 December 2005, civil partnership cases; - result in a flagrant denial of rights under other articles; or - in other compelling circumstances (in protection cases). The API on European Convention on Human Rights and/or the IDI on Human Rights (Chapter 1, Section 10) should be consulted for guidance on the consideration of applications where it is claimed that removal would breach one or more ECHR Articles Leave Outside the Immigration Rules It has always been possible to grant someone limited or indefinite leave to enter/remain outside the Immigration Rules. Where it is not possible to grant leave under the Immigration Rules, or to grant asylum or Humanitarian Protection or Discretionary Leave, any other leave to enter or remain outside the Immigration Rules must be granted under a further category Leave Outside the Rules (LOTR). The only two circumstances where it will be necessary to consider granting LOTR will be in mainly non-asylum and non-protection cases: where someone qualifies under one of the immigration policy concessions; or for reasons that are particularly compelling in circumstance. The reasons for proposing to either grant or refuse LOTR should always be clearly minuted on the file. All proposed grants of LOTR should be referred to and agreed by a Senior Case Worker/Inspector. 2. APPLICATIONS 2.1. Immigration policy concessions Any request for permission to enter or remain in the United Kingdom must normally be made within a category within the Immigration Rules. There are, however, a small number of immigration policy concessions under which someone may apply for limited LOTR. The table at Annex A lists the immigration policy concessions (as at April 2006). An application under any of the immigration policy concessions must be considered in line with the relevant policy guidance. Please note that most of these concessions will be incorporated into the proposed Points Based System for managed migration, or written into Immigration Rules, as outlined in the Five-Year Strategy for Asylum and Immigration. At that stage further instructions will be provided Particular compelling circumstances There may be particular compelling circumstances where someone may request either limited or indefinite LOTR. Any such case should be considered on its individual merits and in line with any relevant policy at the time. Caseworkers/immigration officers should always first give full consideration to whether someone first qualifies under the provisions of the Immigration Rules, or the Humanitarian Protection and Discretionary Leave criteria or any relevant policy 3

4 instruction. It is not possible to give instances or examples of case-types that might be defined as particular compelling circumstances. However, grants of such LOTR should be rare, and only for genuinely compassionate and circumstantial reasons, or where it is deemed absolutely necessary to allow someone to enter/remain in the UK, when there is no other available option. Some specific policy instructions indicate that in certain circumstances leave should not be granted. In such cases, in order to ensure consistency, specific advice should be sought from the relevant policy unit before any LOTR is granted. 3. GRANTS LOTR should only be granted after the full consideration of whether someone first qualifies under the provisions of the Immigration Rules, and the Humanitarian Protection and Discretionary Leave policies, and any other relevant policy. LOTR should not be granted because removal does not seem a viable option or where it conflicts with any relevant policy. All cases to grant LOTR should be referred to and agreed by a Senior Case Worker/Inspector. The reason for the grant should be clearly noted on the file. CID should be updated as necessary when LOTR is granted Limited LOTR An application for LOTR under any of the immigration concessions must be strictly considered in line with the relevant policy instruction. If it is decided that LOTR should be granted, then limited leave should be granted for a specified period for the necessary duration of stay required. Likewise, where it is decided to grant leave because of particular compelling reasons, limited leave should only be granted in accordance with the individual circumstances of the case, again only for the necessary duration of stay required. The granting of limited LOTR should not convey any expectation of further leave or eventual settlement. As soon as the period of limited LOTR comes to an end, the person will be expected to leave the UK unless he applies to extend his leave, or has an entitlement to remain on some other basis Indefinite LOTR Most persons applying to stay in the United Kingdom will require leave for only a specific, limited period (see para 3.1. above). However, there may be a very small number of instances where it is considered appropriate to grant indefinite LOTR because the particular compelling circumstances of the individual case are such that it is almost certain that there will be no change in circumstances within five years. 4. EXTENSIONS The applicant should apply for an extension of limited LOTR on form FLR(O) shortly 4

5 before the LOTR expires. An application for an extension should be processed in line with the relevant policy at the time. If it is decided to grant a further period of LOTR, either under one of the immigration policy concessions or because of the particular circumstances in an individual case, then a further specified period of limited leave should be granted. If the period of limited leave has come to an end, and if the person has no other entitlement to stay in the United Kingdom, he or she should be refused any extension of LOTR and should make arrangements to leave the country. 5. APPEAL RIGHTS When an immigration decision has been made this may trigger a right of appeal in accordance with Part 5 of the Nationality, Immigration and Asylum Act See Chapter 12 of the IDI on Appeals for detailed information. 6. WORDING FOR LETTERS 6.1. Grants Letters in which LOTR to remain is granted should specify that the Secretary of State has agreed to exercise discretion to grant limited/indefinite leave outside the provisions of the Immigration Rules in the particular circumstances of the case. The letter should therefore state that the applicant has been given leave to remain in the United Kingdom outside the Rules until xxx subject to xxx conditions. Brief reasons explaining why the decision has been taken should also be given. The letter should also state that there can be no expectation that any further application will be granted on this basis Refusals Decision notice ICD.2245, which is available on CID s Document Generator should only be used to refuse an in-time application for LOTR to remain; decision notice ICD.2242 should be used if the application for LOTR to remain was out of time. Decision notice IS82A, also available on CID, should be used when refusing LOTR to enter. Brief reasons as to why the decision to refuse was taken should be given in the refusal notice. 7. TRANSITIONAL ARRANGEMENTS Up until 2007 there may be individuals granted exceptional leave prior to April 2003 under the old system whose leave will be ending and who will be seeking to extend their stay. Those applicants who were granted a four-year period of exceptional leave should be considered for settlement with background character and conduct checks, but without a full review. In other words, they will not need to show that they would necessarily qualify for LOTR at the time of the ILR decision. 5

6 Where a person seeks an extension of stay having spent less than four years on exceptional leave (or where they have spent four years on exceptional leave and this has been granted in more than one block), their application should be subject to a full review of all the circumstances of the case, and ILR should only be granted to applicants who qualify for LOTR (or for DL, HP leave or refugee leave) at the date of the ILR decision. If they do not qualify on any of these grounds, or under the Immigration Rules, their application for an extension of stay should be refused. 6

7 Annex A IMMIGRATION POLICY CONCESSIONS Please note: It is planned to incorporate these immigration policy concessions into the proposed Points Based System, as outlined in the Five-Year Strategy for Asylum and Immigration. In the interim, advice on each concession should be obtained from the relevant policy lead. Airline Staff BUNAC students Carers of seriously ill or disabled relatives Civilian personnel in foreign armed forces based in UK Employees of firms under contract to NATO Entertainers EU Leonardo da Vinci programme Film crew on location Japan Youth Exchange Scheme Jewish Agency Employees Knowledge Exchange category Medical treatment under the NHS bilateral healthcare arrangements Medical treatment under the NHS specific treatment arrangements Off-shore workers Over-age dependants of intra-company transfer work permit holders Overseas lawyers Pestalozzi Children s Trust Research assistants to MPs Representatives of Overseas Insurance Companies St. George s University School of Medicine Sportspersons 7

8 Steiner teachers Van der Elst service providers Voluntary workers Welbeck college army recruitment 8

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