Alternative Status
If the Home Office does not believe that an applicant is a ‘refugee’ but nonetheless believes that in the circumstances the individual should not be returned at the present time, humanitarian protection of discretionary leave may be granted.
Humanitarian Protection
The EC Qualification Directive allow certain rights on those who would suffer ‘serious harm’ if removed, as defined in Article 15:
Serious harm consists of:
If the circumstances which gave rise to the need for protection continue to exist, holders of Humanitarian Protection who have completed 5 years of leave will be eligible to apply for Indefinite Leave to Remain. The individual should apply for settlement shortly before the expiry of their Humanitarian Protection leave.
Discretionary Leave
This is a residual form of leave to remain given to individuals who do not qualify for other forms of leave to remain. The most common situation is Article 8 cases where removal is said to breach the right to a private and family life in the United Kingdom , or where a person's medical condition would breach Article 8.
Children who are not accompanied and with regard there are not adequate reception arrangements available in their own country will obtain a certain minimal level of protection. If they qualify for discretionary leave on this basis, and under another basis too, they should receive the higher quality leave to remain.
The Home Office APIs state “There are likely to be very few other cases in which it would be appropriate to grant Discretionary Leave to an unsuccessful asylum seeker. However, it is not possible to anticipate every eventuality that may arise, so there remains scope to grant Discretionary Leave where individual circumstances, although not meeting the criteria of any of the other categories listed above, are so compelling that it is considered appropriate to grant some form of leave.”
Individuals who would have qualified for HP but for committing activities that have caused their exclusion will receive Discretionary Leave – “a person whose removal, not withstanding their actions, would breach the ECHR and who does not qualify for any other form of leave should normally be granted a limited period of Discretionary Leave even if they fall within the exclusion criteria.”
The normal period of grant of Discretionary Leave is three years. The exceptions are for minors, who will be granted DL to the age of 17.5, and in exclusion cases where the person is excluded from other forms of protection but a grant of leave is nevertheless appropriate. In these cases, a grant of six months will be made.
An application for extension can be made where there is a continued need for DL.
In all cases, the holder of DL must have completed six years of DL (10 years in exclusion cases) before being eligible to apply for settlement.
For those who hold Discretionary Leave, applications for family reunion may be considered before the sponsor has been granted ILR but the Home Office will only grant entry clearance in those cases where there are compelling, compassionate circumstances. In all cases the sponsor will be expected to satisfy the maintenance and accommodation requirements as set out in the Immigration Rules – ie they must show that there will be adequate accommodation for the family unit without recourse to public funds in accommodation which they own or occupy exclusively; and that they will be able to maintain themselves and any dependants adequately without recourse to public funds.
Humanitarian Protection
The EC Qualification Directive allow certain rights on those who would suffer ‘serious harm’ if removed, as defined in Article 15:
Serious harm consists of:
- death penalty or execution;
- or torture or inhuman or degrading treatment or punishment of an applicant in the country of origin;
- or serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
If the circumstances which gave rise to the need for protection continue to exist, holders of Humanitarian Protection who have completed 5 years of leave will be eligible to apply for Indefinite Leave to Remain. The individual should apply for settlement shortly before the expiry of their Humanitarian Protection leave.
Discretionary Leave
This is a residual form of leave to remain given to individuals who do not qualify for other forms of leave to remain. The most common situation is Article 8 cases where removal is said to breach the right to a private and family life in the United Kingdom , or where a person's medical condition would breach Article 8.
Children who are not accompanied and with regard there are not adequate reception arrangements available in their own country will obtain a certain minimal level of protection. If they qualify for discretionary leave on this basis, and under another basis too, they should receive the higher quality leave to remain.
The Home Office APIs state “There are likely to be very few other cases in which it would be appropriate to grant Discretionary Leave to an unsuccessful asylum seeker. However, it is not possible to anticipate every eventuality that may arise, so there remains scope to grant Discretionary Leave where individual circumstances, although not meeting the criteria of any of the other categories listed above, are so compelling that it is considered appropriate to grant some form of leave.”
Individuals who would have qualified for HP but for committing activities that have caused their exclusion will receive Discretionary Leave – “a person whose removal, not withstanding their actions, would breach the ECHR and who does not qualify for any other form of leave should normally be granted a limited period of Discretionary Leave even if they fall within the exclusion criteria.”
The normal period of grant of Discretionary Leave is three years. The exceptions are for minors, who will be granted DL to the age of 17.5, and in exclusion cases where the person is excluded from other forms of protection but a grant of leave is nevertheless appropriate. In these cases, a grant of six months will be made.
An application for extension can be made where there is a continued need for DL.
In all cases, the holder of DL must have completed six years of DL (10 years in exclusion cases) before being eligible to apply for settlement.
For those who hold Discretionary Leave, applications for family reunion may be considered before the sponsor has been granted ILR but the Home Office will only grant entry clearance in those cases where there are compelling, compassionate circumstances. In all cases the sponsor will be expected to satisfy the maintenance and accommodation requirements as set out in the Immigration Rules – ie they must show that there will be adequate accommodation for the family unit without recourse to public funds in accommodation which they own or occupy exclusively; and that they will be able to maintain themselves and any dependants adequately without recourse to public funds.
