R (on the application of SB and ABD) v SSHD IJR (2015) UKUT (IAC)
Summary
This case is useful if you were granted 3 years Discretionary Leave before 09 July 2012 and have applied or are going to apply for an extension of Discretionary Leave after that date.
This is important, because for applications to extend stay after that date, transitional arrangements apply. Discretionary Leave does not exist for new applications on or after 09 July 2012. This means that if you fall within the criteria, you may be granted another 3 years of Discretionary Leave. If not, the Home Office look at Appendix FM for family members, and Article 8 private and family life, and grant Limited Leave to Remain, in blocks of 30 months at a time. This is a 10 year route to settlement, known as Indefinite Leave to Remain, with no recourse to public funds.
With Discretionary Leave, you can apply for Indefinite Leave after 6 years, and have recourse to public funds. So with Discretionary Leave, you have a quicker route to Settlement and can claim benefits if required.
This case looks at the transitional arrangments for a further grant of Discretionary Leave, where the first grant was before 09 July 2012. The transitional arrangments consider whether there has been a significant change in circumstances. The case also looks at Home Office Policy regarding a request to remove the condition of no access to benefits, knows as No Recourse to Public Funds. You have to show destitution or that the welfare of a child requires recourse to public funds.
If the Home Office consider there HAS been a significant change in circumstances, their Policy is to refuse a grant of Discretionary Leave, and go on to consider the case under the new rules in force from 09 July 2012.
The applicant in this case entered the UK as a visitor in 2001 and then in 2010 both the applicant and her father were granted three years Discretionary Leave to Remain on Human Rights grounds. Three years later in 2013 both father and daughter applied to extend their stay in the UK on Article 8 family and private life grounds. The Home Office refused a grant of Discretionary Leave, and instead granted the applicant leave to remain for 30 months with a condition prohibiting recourse to public funds (the ‘NRPF’ condition).
The applicant challenged the lawfulness of (i) the decision to grant limited leave to remain rather than Discretionary Leave, and (ii) the decsion to impose and refuse to remove the condition prohibiting recorse to public funds. An Upper Tribunal Judge granted permission to bring these proceedings.
Decision under challenge
In essence the Home Office made an active review of the application to extend Discretionary Leave and was not satisfied that the grounds under which the applicant was previously granted Discretionary Leave still existed and so that application was refused.
They made this decision based on the fact that the applicant no longer lived with her father, but with her young child in their own rented accomodation. She was also working. She was granted leave to remain on the basis of Article 8 private and family life, under the Immigration rules in place from 09 July 2012 for 30 months, with a condition prohibiting recourse to public funds. She is therefore now on the 10 year rather than the 6 year route to Indefinite leave.
This decision was made on the basis that the Home Office decided her circumstances had ‘significantly changed’ since the first grant of Discretionary Leave was granted before 09 July 2012.
The Home Office Policy states that Discretionary Leave is granted outside of the Immigration Rules, and must not be granted where a person qualifies for asylum, Humanitarian Protection or where there is another category within the Immigration rules under which they qualify.
In this case, because the Home Office considered that the application did not meet the requirements for Discretionary Leave to Remain, the application was considered under the Article 8 private and family life, which it was found that she met and therefore qualified for leave in theat category. The stated aim of the Discretionary Leave policy is ‘ to use Discretionary Leave sparingly‘.
Section 10 of the Discretionary Leave Policy is important because it states ‘ Decision makers must consider whether the circumstances prevailing at the time of the original grant of leave continue at the date of decision. If the circumstances remain the same, a further period of 3 years DL should normally be granted.
If there have been significant changes the application for further leave should be refused.’
From 09 July 2012 people whose removal would lead to a breach of their Article 8 family or private life are either given leave under the new Immigration rules or Limited Leave to Remain Outside of the Rules (LLOR), which is different to Discretionary Leave. Under the new rules if you are given leave to remain under Article 8 family or private life, access to benefits is an exception, not the rule.
In this particular case, the Judge found that the applicant’s circumstances HAD significantly changed since 2010 and so the Home Office was entitled to refuse a further grant of Discretionary Leave.
As far as the condition prohibiting recourse to public funds was concerned, the Judge found that the facts of the applicant’s case could not lead to the conclusion that the applicant was either destitute or that the welfare of her child requied recorse to public funds.
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