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

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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

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April/06

IMMIGRATION DIRECTORATES' INSTRUCTIONS

CHAPTER 1

LEAVE OUTSIDE THE RULES

SECTION 14

1.

INTRODUCTION

The system of granting leave to people exceptionally outside the Immigration Rules

changed on 1 April 2003. 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).

1.1.

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

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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.

1.2.

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.

2.2.

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

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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.

3.1.

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.

3.2.

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

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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 2002. 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.

6.2.

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.

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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.

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IDI April/06 CH1 SECT14 – LEAVE OUTSIDE THE RULES

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

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Steiner teachers

Van der Elst service providers

Voluntary workers

Figure

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References

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