In March 1998 the Government released its internal Asylum Directorate Instructions on their Exceptional Leave policy. The guidelines lay a number of eligibility criteria including applicants who come from countries where Ministers have agreed that for humanitarian reasons exceptional leave to enter or remain in the UK should be granted (at the present time applicants from Liberia are the only nationals to benefit from the criteria ); where there are grounds for believing that an applicant will face torture or inhuman or degrading treatment (in line with Article 3 of the European Convention on Human Rights) where they have otherwise been refused asylum under the 1951 UN Convention relating to refugees; and where it is clear the applicant will face a disproportionate punishment for a non-political crime (e.g. execution for draft evasion).

There are two further grounds where an applicant may come under the Exceptional Leave policy which are detailed below. It is important to be aware that the guidelines relate to asylum applicants only but they do not exclude non-asylum applicants and they do take into account issues that pertain to all immigration applicants, whatever the basis of their application.

The Exceptional Leave policy is to be applied: "Where there is credible medical evidence that return would result in substantial damage to the physical or psychological health of the applicant or his dependents. In cases of doubt, a second opinion should be sought from a credible source." It is therefore essential that where this aspect applies in an a case then applicants ensure that full and detailed representations are made to the Home Office and that a "credible" medical report is supplied as evidence in support.

There is no use obtaining a doctor's report which makes a bold statement that an applicant will suffer if removed from the UK unless full details are included. This requires, as a basic minimum, a detailed diagnosis of the illness involved; the treatment received in the past and the development of the illness during the treatment; a detailed prognosis of the development of the illness if the applicant is forced to leave the UK or if he or she is allowed to remain in the UK; the extent to which support networks outside of the medical treatment (e.g. ties to the community) have a beneficial effect as part of the overall approach in improving the effectiveness of the treatment. Such issues raised in a medical report should then be furthered by way of representations arguing why treatment abroad would be ineffective (e.g. because it is unavailable or because conditions make it impossible for current treatment to be continued) or why current treatment needs to be maintained (e.g. without a consistent approach to treatment the applicants illness is likely to deteriorate).

The Home Office Exceptional Leave policy also states: "In addition, exceptional leave may be granted in cases where a decision has not been taken for seven years after the application was made. However, this practise is currently under ministerial review and any decision to grant ELE/R (Exceptional Leave to Enter/Remain) under these circumstances should be approved at SEO (Senior Executive Officer) level, after consultation with APU (Asylum Policy Unit)." Surprisingly The Guardian reported on 12 May 1998 that this policy "has been in effect for more than a decade".

As we have previously noted in this newsletter, prior to 1993 asylum applicants who had been in the UK for more than two years and whose claims for asylum had been refused, were being granted Exceptional Leave. The head of the Immigration Service Union specifically stated last year on the radio that the Immigration Service at ports used to receive files from the Home Office stating an asylum claim had been refused, the applicant had been in the UK for more than two years, and that Exceptional Leave to Enter was to be granted. Around the same time as this was happening the Home Office Minister, Charles Wardle, stated in Parliament in 1992: "Exceptional leave to remain has been used for practical reasons, given the delays and inefficiencies in the present system. We recognise that a point may come when it is unreasonable to enforce departure on someone who has been waiting here for a long time."

Nevertheless, the Home Office's current policy states that Ministers are reviewing the Exceptional Leave policy, and given that the national press have already run scare stories about a possible extension of the Exceptional Leave policy (i.e. an amnesty for certain categories) it will be surprising indeed if the policy is extended or made more flexible to take into account other categories of applicants (e.g. those who made asylum claims before the implementation of the 1996 Act).

The main issue for campaigners to focus on is the reasoning behind the seven year policy which invariably comes down to the fact as to whether, and to what extent, an applicant has established ties in the UK. Whether or not an applicant has been in the UK for less or more than seven years, it is important that all information relating to their circumstances in the UK and integration into their community in the UK, and commensurate support, is brought to the attention of the Home Office. Given that the Exceptional Leave policy is currently applied by the Home Office after an asylum claim is refused, such information should be disclosed at the earliest opportunity before a decision is made on an asylum claim. Of course the same information should be sent to the Home Office in any case even if a claim was refused long before the submission of the new evidence.

As with all Home Office policies, it is important for applicants to respond to them as quickly as possible and to take advantage of any aspects that may further their case. It is often the case that the Home Office amends their internal policies once it becomes evident that applicants are benefiting in significant numbers. Applicants should also be aware of the "Disqualifying criteria" in the Exceptional Leave policy which states that Exceptional Leave should be refused where "The applicant has committed a serious non-political crime in the UK or overseas" and where "The application is so clearly unfounded and abusive that any prolongation of stay would be inappropriate." In such situations the Home Office will argue that the compassionate grounds do not out-weigh the need to 'maintain the integrity of the UKs immigration controls'. In such cases the only resort will rest on either making a successful legal challenge or ensuring sufficient public support for the contrary view through a campaign.

We will continue campaigning for the extension of the Exceptional Leave policy to take into account as many cases as possible given that thousands of applicants who have settled in the UK with their families are excluded by the current policy. The Home Office have already tightened their deportation guidelines which has enabled them to argue that applicants applying to stay on compassionate grounds outside the Immigration Rules and outside their own exceptional policies or internal guidelines, are in fact asking to be treated as 'an exception to an exception'. In such circumstances cases are invariably refused, even where the compassionate circumstances are otherwise so strong as to encourage an expectation that the Home Office will grant Exceptional Leave on humanitarian grounds. Many of the NCADC's affiliate campaigns are evidence of this fact.

Pierre Makhlouf: Hackney Community Law Centre