Immigration & Nationality Directorate August 2005

1. Introduction
Humanitarian Protection and Discretionary Leave were introduced on 1 April 2003 to replace exceptional leave.

Where an asylum applicant does not qualify for refugee status, the caseworker should always consider whether they qualify for Humanitarian Protection and if not, then consider whether they qualify for Discretionary Leave (see the API on Assessing the Claim). A stand alone human rights claim may also result in a grant of Discretionary Leave if the qualifying criteria are met.

This instruction explains the limited circumstances in which it would be appropriate to grant Discretionary Leave. For guidance on Humanitarian Protection please refer to the API on Humanitarian Protection.

For details on family reunion and on dependants accompanying an applicant who is granted Discretionary Leave, please see the APIs on Family Reunion and Dependants respectively.

Non-asylum cases may qualify for Discretionary Leave only in the limited circumstances outlined in this instruction (see sections 2.1 to 2.3, and 2.6, for the relevant categories). Where a non-asylum case does not meet the criteria for a grant of Discretionary Leave (or Humanitarian Protection) but the caseworker is still considering granting leave outside the Rules, they should refer to Chapter 1 Section 14 of the IDIs on Leave Outside the Rules.

Separate instructions may be issued in relation to the handling of applications for Discretionary Leave. The instructions will be in the form of APU Notices, Country Bulletins or Operational Guidance Notes (OGNs). Where such instructions are in force, they will take precedence over the contents of this instruction, to the extent that they make different provisions.
Key points

* Discretionary Leave is to be granted only if a case falls within the limited categories set out in this instruction (see section 2). It is intended to be used sparingly.

* Discretionary Leave is granted outside the Immigration Rules.

* Discretionary Leave should not be granted where a person qualifies for asylum or Humanitarian Protection, or where there is a category within the Immigration Rules under which they qualify.
? Discretionary Leave should not be granted to EU nationals who are exercising treaty rights.

* Discretionary Leave should not be granted where another EU Member State or Norway / Iceland has accepted responsibility for an asylum application under the Dublin arrangements or where an individual is otherwise removed on third country grounds.

* Discretionary Leave is not to be granted on the basis that there is, for the time being, no practical way of removing a person, e.g. an absence of route or travel document.

* The period of leave granted will vary depending on the basis on which the grant of Discretionary Leave was made. An initial grant of leave will be no longer than three years and will sometimes be less - see section 5 for details.

* Where an extension of leave is sought after a period of Discretionary Leave the request will be subject to an active review. A person will not become eligible for settlement until they have completed six years' Discretionary Leave. This period will be longer, at least ten years and potentially never, for those in the excluded category (see section 2.6). For further guidance see the API on Active Reviews.

* For details on family reunion and dependants accompanying an applicant who is granted Discretionary Leave see respectively the APIs on Family Reunion and Dependants.

* Those granted Discretionary Leave have access to public funds and are entitled to work.

2. CRITERIA FOR GRANTING DISCRETIONARY LEAVE

2.1. Cases where removal would breach Article 8 of the ECHR
Where the removal of an individual would involve a breach of Article 8 of the ECHR (right to respect for private and family life) on the basis of family life established in the UK, they should be granted Discretionary Leave. Leave should not be granted on this basis without a full consideration of the Article 8 issues. Please refer to the API on European Convention on Human Rights. Further guidance is also provided in an API on Article 8 of the ECHR.

This category applies to both asylum and non-asylum cases. In non-asylum cases it is most likely to arise in the context of a marriage application where, although the requirements of the Rules are not met (e.g. because the correct entry clearance is not held), there are genuine Article 8 reasons which would make removal inappropriate. Discretionary Leave should not be granted under Article 8 in non-asylum cases without reference to a senior caseworker.

Policy on the consideration of cases of those persons liable to be removed as illegal entrants or deported who have married a person settled in the UK is contained in DP3/96.
2.2. Cases where removal would breach Article 3 of the ECHR but where Humanitarian Protection is not applicable
Where a person's removal would be contrary to Article 3 of the ECHR (see the API on European Convention on Human Rights for further details) based on a protection need arising from a real risk of the deliberate infliction of ill treatment on return, they will normally qualify for Humanitarian Protection (unless they fall to be excluded from those provisions - see section 2.6). However, as explained in the API on Humanitarian Protection there are some cases where the Article 3 breach does not arise from the deliberate infliction of ill treatment, eg where a person?s medical condition or where severe humanitarian conditions in the country of return would make removal contrary to Article 3. Persons falling into this category should be granted Discretionary Leave rather than Humanitarian Protection.

This category applies to both asylum and non-asylum cases.

Medical cases
It can be a breach of Article 3 to remove someone from the UK if to do so would amount to inhuman or degrading treatment owing to the suffering which would be caused because of that person's medical condition. The threshold for inhuman and degrading treatment in such cases is extremely high and will only be reached in truly exceptional cases involving extreme circumstances. The fact that the applicant is suffering from a distressing medical condition (e.g. a condition which involves a limited life expectancy or affecting their mental health), is not, in itself, sufficient to meet this threshold. For further guidance please refer to the API on European Convention on Human Rights and Chapter 1 Section 8 of the IDIs (Medical Examination).

Where it is proposed to grant leave under this category the case should be referred to a senior caseworker.

Severe humanitarian conditions
There may be some extreme cases (although such cases are likely to be rare) where a person would face such poor conditions if returned - e.g. absence of water, food or basic shelter - that removal could be a breach of the UK's Article 3 obligations.

Where it is proposed to grant leave under this category the case should be referred to a senior caseworker.

2.3. Other cases where removal would breach the ECHR
This category applies to asylum and non-asylum cases where the breach would not give rise to a grant of Humanitarian Protection and is not covered by 2.1 or 2.2 above. For example, where removal would give rise to an ECHR breach because there would be a flagrant denial of right in question on return to the person?s country of origin. For guidance on the consideration of other ECHR claims, please refer to the API on European Convention on Human Rights.

It will be rare for removal to breach another Article of the ECHR without also breaching Article 3 and/or Article 8. Cases falling under this category should be referred to a senior caseworker for approval before a grant of Discretionary Leave is made.

2.4. Unaccompanied asylum seeking children (UASCs)
Where an unaccompanied child applies for asylum, caseworkers should, as with any other applicant, first consider whether they qualify for asylum and if they do not, whether they qualify for Humanitarian Protection. If they do, leave should be granted accordingly. If they do not, they would qualify for Discretionary Leave if there are inadequate reception arrangements available in their own country.

Where an unaccompanied child qualifies for Discretionary Leave on more than one ground (i.e. on the ground of inadequate reception arrangements and also on another ground) they should be granted leave on the basis of the ground that provides the longer period of stay. However, all grounds which might have led to a grant of leave should be recorded in the file minute.

2.5 Other cases
This category applies only to asylum cases. Caseworkers should refer to Chapter 1 Section 14 of the IDIs on Leave Outside the Rules for guidance on granting leave in non-asylum cases where there are particularly compelling circumstances.

Sections 2.1 to 2.4, and 2.6, set out the categories under which it would normally be appropriate to grant Discretionary Leave. 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.

Discretionary Leave should not be granted on this basis without discussion with a senior caseworker. Detailed file minutes will be required to keep accurate records of what has been decided and for what reasons.

From time to time separate instructions may be issued describing a category of case for which Discretionary Leave might be granted under this heading. Such instructions would set out any other relevant information for handling such cases.

See also section 5.3 on "Short periods of stay or deferred decision/removal".

2.6 Applicants excluded from Humanitarian Protection
Where a person would have qualified for Humanitarian Protection but for the fact that they were excluded from such protection, they should be granted Discretionary Leave, unless Ministers decide in view of all the circumstances of the case that it is inappropriate to grant any leave. Where it is decided that leave should not be granted, the individual will be kept or placed on temporary admission or temporary release.

The API on Humanitarian Protection provides that a person should normally be excluded from Humanitarian Protection where there are serious reasons for considering that they:

* have committed a crime against peace, a war crime, or a crime against humanity as defined in the international instruments drawn up to make provision in respect of such crimes;
* have committed a serious crime in the United Kingdom or overseas;
* are guilty of acts contrary to the purposes and principles of the United Nations.

It also provides that a person should be excluded from Humanitarian Protection where they are included on the Sex Offenders' Register; or where the Secretary of State deems that their presence in the UK is not conducive to the public good, for example on nationality security grounds, because of their character, conduct or associations, or as a result of engaging in one or more of a list of unacceptable behaviours (see the API on Humanitarian Protection for details of the list). This may apply, for example, where deportation action has been considered and has not been pursued (or has been abandoned) only because Article 2 or Article 3 considerations render removal impossible for the time being.

Although the same exclusion criteria are to be used in considering Discretionary Leave cases, their application is necessarily different. In particular, a person whose removal, notwithstanding their actions, would breach the ECHR and who does not qualify for any other form of leave should normally (unless the option of deferred removal is taken - see section 5.3) be granted a limited period of Discretionary Leave even if they fall within the exclusion criteria. However Ministers may decide that it is inappropriate to grant any leave to a person falling within the excluded category in the light of all the circumstances of the case. Where it is decided that leave should not be granted the individual will be kept or placed on temporary admission or temporary release.

Caseworkers should always decide whether any of the above-listed exclusion criteria apply because, if they do, it will affect the length of stay granted (see section 5 on duration of Discretionary Leave) and may affect whether the person qualifies for Discretionary Leave at all, as follows:

Article 8 claims (section 2.1): since there is a proportionality test in Article 8(2), the fact that a person falls into an exclusion category may mean their removal would not be a breach of Article 8 - see the API on European Convention on Human Rights. For further guidance, see also the API on Article 8 of the ECHR.

Article 3 claims (section 2.2): Discretionary Leave should be granted as Article 3 is absolute unless Ministers decide this is not appropriate (see above).

Other ECHR claims (section 2.3): the effect of falling within the exclusion criteria will depend on the particular Article involved and whether a proportionality test applies - see the API on European Convention on Human Rights.

UASCs (section 2.4): No decision to exclude a UASC should be made without reference to the Children and Families Asylum Policy Team (CFAPT).

Other cases (section 2.5): falling within the exclusion criteria is a factor to be taken into account, and given appropriate weight depending on the individual circumstances of the case.

Excluded from HP (section 2.6): by definition, persons in this category would get Discretionary Leave, unless Ministers decide, in view of the all the circumstances of the case, that it is inappropriate to grant any leave and instead place or keep the person on temporary admission or temporary release.

3. GRANTING OR REFUSING DISCRETIONARY LEAVE IN ASYLUM CASES

3.1. Granting Discretionary Leave
Asylum applicants who are granted Discretionary Leave should be issued with a Reasons For Refusal Letter (RFRL) which explains why the asylum application has been refused and why Humanitarian Protection has not been granted. The reasons for granting Discretionary Leave should also be set out. These reasons do not need to be detailed, but it should be clear under which of the categories listed in sections 2.1 to 2.6 the person qualifies.
If someone qualifies under two headings they should benefit from the more generous one. The letter should only refer to the basis on which leave was granted but the file minutes will need to be clear that both were considered applicable.

If the grant of Discretionary Leave has been made on the basis of a fear of ill treatment by the authorities in the country of nationality, then the RFRL should make this clear. Unless a fear of the authorities in the country of nationality is accepted, individuals with Discretionary Leave should apply for a national passport rather than a Home Office travel document if they wish to travel abroad.
3.2 Refusing Discretionary Leave
Applicants who are refused outright should be issued with a Reasons For Refusal Letter which explains why the asylum application has been refused, why Humanitarian Protection has not been granted, and (if not already fully covered by the reasons for refusing asylum and Humanitarian Protection) why removal would not breach the United Kingdom?s obligations under the ECHR.

The letter should also say that it is considered that there is no basis for granting leave outside the Immigration Rules. No further information needs to be given about the refusal of Discretionary Leave, unless the applicant has specifically sought such leave as part of their application. Although there is no basis under the Rules for seeking Discretionary Leave, any matters raised by an applicant which relate to or rely on the contents of this policy instruction should be addressed in the refusal letter.

See the API on European Convention on Human Rights for further details about addressing ECHR issues. Further guidance is also provided in the API on Article 8 of the ECHR.

4. REQUEST FOR DISCRETIONARY LEAVE AFTER THE INITIAL DECISION AND APPEAL STAGES
Occasions may arise when, following the refusal of asylum and exhaustion of all appeal rights, a request is nonetheless made for Discretionary Leave, usually in the form of a human rights claim.

By the time all rights of appeal have been exhausted, there will be very few cases that would merit a grant of Discretionary Leave because the relevant factors are likely to have been considered at an earlier stage. However, caseworkers should give full and careful consideration to the reasons provided for requesting such leave, and decide whether such a grant would be appropriate.

4.1 Further representations/fresh claims
If refused, a request for DL in such a case should either be treated as further representations or, if treated as a fresh claim, be considered for certification under section 96 of the Nationality, Immigration and Asylum Act 2002 (as amended).

For more information see the API on Further Representations and Fresh Claims. See also the API on Appeals - One-Stop Procedure on certification under section 96.

4.2 Asylum and Immigration Tribunal (AIT) Determinations
In some cases, the Asylum and Immigration Tribunal (AIT) may dismiss an asylum appeal but suggest that Discretionary Leave is granted in an individual case. In such instances the case is to be considered in accordance with guidance in the API on Appeals - Recommendations by the Appellate Authorities.

5. DURATION OF GRANTS OF DISCRETIONARY LEAVE

5.1. Standard period for different categories of Discretionary Leave
Subject to sections 5.2 and 5.3, it will normally be appropriate to grant the following period of Discretionary Leave to those qualifying under the categories set out in section 2. All categories will need to complete at least six years in total, or at least ten years in excluded cases, before being eligible to apply for ILR.

Article 8 cases (section 2.1) - three years.
Article 3 cases (section 2.2) - three years.
Other ECHR Articles (section 2.3) - three years.

UASCs (section 2.4) - where leave is granted to a UASC on the basis of inadequate reception arrangements in the home country, they should be granted three years or leave until age 18, whichever is the shorter; or the shorter of 12 months or leave until age 18 in some specified countries (see APU notice 2/2003 "Application of NSA process to asylum seeking children"). Where a UASC qualifies under another category, they should be granted the standard period as shown in this section.

Other cases (section 2.5) - three years (but this category is probably more likely than others to be affected by paragraphs 5.2 and 5.3 below).

Excluded from Humanitarian Protection - six months (unless Ministers decide in the light of all the circumstances of the case that it is inappropriate to grant any leave and instead keep or place the person on temporary release or temporary admission). This period applies to the first grant and any subsequent grants following an active review.

5.2. Non-standard grant periods
There may be some cases - for example, some of those qualifying under section 2.1 (Article 8) or section 2.5 (other cases) - where it is clear from the individual circumstances of the case that the factors leading to Discretionary Leave being granted are going to be short lived. For example:
* an Article 8 case where a person is permitted to stay because of the presence of a family member in the United Kingdom and where it is known that the family member will be able to leave the United Kingdom within say, 12 months;
* or a case where a person is permitted/required to stay here to participate in a court case.

In these cases it will be appropriate to grant shorter periods of leave.

Non-standard grants should be used only where the information relating to the specific case clearly points to a shorter period being applicable. Reasons for granting a shorter period should be included in the letter to the applicant.

Shorter periods of leave should only be granted after reference to a senior caseworker.

5.3. Short periods of stay or deferred decision/removal
There will be some cases where the factors meriting a grant of Discretionary Leave are expected to be sufficiently short lived that the question arises whether to grant a short period of leave or to refuse the application outright whilst giving an undertaking not to remove the individual until the basis for not removing them has ended. Such cases could arise at the initial decision-making stage or following an appeal.

Where it is considered that removal would be possible within six months of the date of decision it will normally be appropriate to refuse the claim outright and not to grant a period of Discretionary Leave and to defer removal until such time as it is possible.

6. CURTAILING DISCRETIONARY LEAVE
A grant of Discretionary Leave will not normally be actively reviewed during its currency. This paragraph sets out the circumstances when consideration should be given to curtailing such leave. Further guidance on curtailment of Discretionary Leave can be found in chapter 9, section 5, paragraph 3 of the IDIs.

6.1. Voluntary actions leading to curtailment
It will not usually be appropriate to curtail a person?s leave simply because they have returned to their own country or have travelled on their own national passport (people granted Discretionary Leave will normally be expected to keep their own national passport valid). This is because we will usually not have accepted that a person has a fear of return to their own country or a fear of their own authorities and will have granted Discretionary Leave for reasons other than protection.

However, there may be some occasions where leave should be curtailed because an individual has demonstrated by their own actions that the reasons on which they were granted Discretionary Leave no longer persist: for example, if someone was granted Discretionary Leave under Article 8 based on their marriage and they chose to leave the marriage.

6.2. Curtailment as a result of a change in country conditions
A grant of Discretionary Leave should not be reviewed on these grounds before it ends, unless there is a specific instruction to do so in relation to a particular country or to a category of cases in respect of a particular country. Any such instruction will provide details of the review process to be undertaken. These instructions may be separate from any instructions on reviewing limited leave as a refugee or Humanitarian Protection granted on or after 30 August 2005 based on a significant and non-temporary change in country conditions. Any consideration of whether to curtail Discretionary Leave would need to take into account the effect of the change in country circumstances on the individual.

It may be less likely for a change in country circumstances to have an effect on those with Discretionary Leave than those with refugee status or Humanitarian Protection. But there could be situations where such a change is relevant to those with Discretionary Leave under certain categories - for example any claims based on severe humanitarian conditions.

6.3. Curtailment/variation of leave on the grounds of character or conduct (including deception)
Discretionary Leave should normally be curtailed if a person becomes subject to any of the exclusion criteria set out in section 2.6 above (which are the same as those in the API on Humanitarian Protection). This will usually apply where a person?s actions after the grant of Discretionary Leave bring them within the scope of those criteria. There may also be some situations where we become aware that a person is subject to one of the disqualifying criteria only after the grant of Discretionary Leave. Again, it would normally be appropriate to curtail leave in such cases.

If the individual were liable to deportation, the deportation order would have the effect of cancelling any extant leave. Separate action to curtail or vary leave would only be necessary therefore, where a person was liable for deportation but it was not possible to make a deportation order (e.g. for Article 3 ECHR reasons).

A person who obtains Discretionary Leave (leave to enter) by deception is an illegal entrant. If it is decided to take illegal entry action against that person (under Schedule 2 to the 1971 Immigration Act) the leave is voided. Where a person has obtained Discretionary Leave (leave to remain) by deception, that person is liable to removal under section 10 of the 1999 Immigration and Asylum Act. Directions given under section 10 invalidate any leave that has been given previously.

Separate action to vary Discretionary Leave will be required only where removal directions cannot be set (e.g. for Article 3 ECHR reasons).

If a person who falls into an exclusion category cannot be removed and they have more than six months remaining of their leave, it should be varied and replaced with a maximum period of six months? Discretionary Leave. If removal is considered to be possible in the near future a shorter period of Discretionary Leave, or no leave, should be granted.

Even if removal of a person falling into an exclusion category is not considered possible within six months, Ministers may decide in view of all the circumstances of the case that it is inappropriate to grant any leave. Where it is decided that leave should not be granted the individual will be placed on temporary admission or temporary release.

6.4. Other situations where the basis for the grant of leave has ceased to exist
There may be other occasions where due to a change in circumstances it would be appropriate to curtail Discretionary Leave. For example, it would be appropriate where a child who was granted leave under the UASC policy is subsequently contacted by an adult family member who can care for them in their own country or where someone was granted leave on Article 8 grounds because of their relationship with a person settled here and that person subsequently leaves the United Kingdom or the relationship otherwise ends.

A senior caseworker should always be consulted before any action is undertaken to consider revocation of Discretionary Leave under this category.

7. APPLICATIONS FOR FURTHER LEAVE
A person will not become eligible for consideration for settlement until they have completed six years of Discretionary Leave or, in the case of persons subject to the exclusion criteria, until they have completed at least ten years of Discretionary Leave. Anyone granted Discretionary Leave will therefore have to have at least one interim review before they become eligible for consideration for settlement.

An individual should apply for an extension of Discretionary Leave shortly before it expires. The application will be considered in the light of circumstances prevailing at that time.

Where the request for leave amounts to a request for an upgrade from Discretionary Leave to Humanitarian Protection status, see the API on Humanitarian Protection.

7.1. Consideration of the extension request
Extension requests will normally be the subject of an active review, to decide whether the person still qualifies for Discretionary Leave (or any other form of leave that is requested). This review will take account of the information on the extension request form, present country information and any other information we are aware of which is relevant to the claim, including any relevant information provided at the time of the original grant of Discretionary Leave.

In many cases an active review will be conducted on the papers without the need for interview. However an interview may be necessary where further information is required in order to make a decision on the application.

The nature of the active review will depend on the reasons why Discretionary Leave was granted. It may, for example, involve consideration of the current family situation of the applicant, the conditions in the country of origin, whether reception arrangements for a child are still unavailable or whether there is still a barrier to the removal of an excluded person. For further guidance see the API on Active Reviews.

7.2 Granting an extension
Where an individual still qualifies for Discretionary Leave (and does not qualify for leave on another basis ? i.e. under the Immigration Rules) they should normally be given an extension of stay for a period in accordance with section 5 of this instruction. The exception is that a shorter period should be granted if such an extension would take the person beyond the time when they would become eligible for consideration for settlement (i.e. six or ten years). The shorter period should be such as to bring the person?s aggregate stay on Discretionary Leave up to six or ten years, as appropriate.

7.3 Refusing an extension
Where, following review, it is decided that an individual no longer qualifies for Discretionary Leave and that they do not qualify for any other form of leave their extension request should be refused.

1. APPLICATIONS FOR SETTLEMENT
A person will normally become eligible for consideration for settlement after completing six continuous years of Discretionary Leave. However, where a person is covered by one of the exclusion categories they will not become eligible for consideration for settlement until they have completed ten continuous years of Discretionary Leave. Any time spent in prison in connection with a criminal conviction would not count towards the six or ten years.

An individual may apply for ILR/settlement at the six or ten year stage shortly before Discretionary Leave expires. The application will be considered in the light of circumstances prevailing at that time.

8.1. Consideration of application
As with an extension request, the application should be subject to an active review to consider whether or not they still qualify for Discretionary Leave (or some other form of leave).

8.2. Granting settlement
Where a person has held Discretionary Leave for an appropriate period and continues to qualify for Discretionary Leave, they should be granted ILR/settlement. This is subject to sections 8.3 and 8.4 below.

8.3. Further grants of Discretionary Leave
There may be some cases where it is clear that the basis for the (continuing) grant of Discretionary Leave is temporary. If there is a clear basis for considering that within less than twelve months the factors giving rise to the grant of Discretionary Leave will not apply then settlement should not be granted - for example, an Article 8 case in which it is considered that a person should not be removed for about six months because of the family life they have established with someone in the United Kingdom who will be leaving the United Kingdom in six months' time. Instead a shorter further period of Discretionary Leave should be granted.

A person may not be denied settlement under this section for more than twelve months beyond the normal qualifying period.

8.4. Personal decision by Ministers
Where a person who is subject to the exclusion criteria has completed ten years of Discretionary Leave they may be denied settlement where Ministers decide in the light of all the circumstances of the case that the person?s presence in the United Kingdom is not conducive to the public good (this may be decided in the individual circumstances of a case, or for a category of cases). Reasons for this decision should be given. A further period of Discretionary Leave should be granted where it is not possible to remove the person. In such a case, for so long as the individual remains in the United Kingdom, a fresh decision will need to be taken at least every three years on whether settlement should continue to be denied.

8.5. Refusal of settlement and further leave
Where a person no longer qualifies for Discretionary Leave or any other form of leave, their application for settlement should be refused.

9. APPEAL RIGHTS
Note that changes to appeal rights are contained in a Bill currently before Parliament. This section will be updated when the Bill is enacted.

Section 82 of the Nationality, Immigration and Asylum Act 2002 provides an appeal right where certain immigration decisions are made. These immigration decisions include refusal of leave to enter, deciding to remove a person by way of directions, varying a person?s leave such that no leave remains (i.e. curtailment) and refusing an application to vary leave such that no leave remains. Where asylum is refused but an alternative form of leave is granted there may be an appeal right under section 83 of the 2002 Act. See the API on Appeals- rights of appeal.

Discretionary Leave is not a category under the immigration rules. Where an application is refused for that reason alone, the right of appeal is restricted to asylum, human rights and race relations grounds. See chapter 12, section 1, part 4 of the IDIs for details. Note that no human rights claim should be refused on the basis that the application is outside the Immigration Rules.

10. ISSUING OF TRAVEL DOCUMENTS

A person granted Discretionary Leave will normally be expected to keep their own national passport valid. This is because we will usually not have accepted that a person has a fear of return to their own country or a fear of their own authorities and will have granted Discretionary Leave for reasons other than protection.

However, a person who holds leave on grounds of Discretionary Leave may apply for a Home Office Certificate of Identity (CID) on the appropriate application form. Applicants must normally show that they have been formally and unreasonably refused a national passport, unless IND has accepted that they have a well-founded fear of their national authorities. It will no longer be necessary for those applying for a Certificate of Identity to provide a compelling reason for travelling. Unless the applicant holds ILR, the document will be valid until the holder's current leave to enter or remain expires.

11. TRANSITIONAL ARRANGEMENTS
Up until 2007 there will be individuals granted exceptional leave 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 in one block and who then apply for ILR at the end of that period should be considered for settlement with background character and conduct checks, but without a full active review. In other words, they will not need to show that they would necessarily qualify for Humanitarian Protection or Discretionary Leave at the time of the ILR decision.

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 granted in more than one block), their application should be examined to determine whether a grant of Humanitarian Protection, Discretionary Leave or leave on another basis is appropriate. If they do not qualify for Humanitarian Protection or Discretionary Leave or for leave on any other basis (such as under the Immigration Rules), their claim for an extension of stay should be refused. (Further guidance is contained in the API on Active Reviews).

If they do qualify for Discretionary Leave (but not Humanitarian Protection) they should be granted leave in accordance with this instruction. Periods spent on exceptional leave will count towards the six or ten years qualifying period for settlement applicable to those with Discretionary Leave