Discretion is a word that crops up frequently in immigration law: applicants and practitioners will note its appearance in everything from Home Office decision-letters and policy documents to judgments of the Tribunals and the Senior Courts. Generally, it is used in its ordinary sense to mean the freedom to make a choice in a particular situation. In many circumstances, Home Office decision-makers will have a discretion as to the course of action they take – meaning they should take into account all the relevant facts of the case before making their own decision. This stands in contrast to other situations, where the law dictates that they must follow a particular course of action, or come to a particular decision.
In this post we will consider a variety of situations where discretion is to be exercised, and what the law says about how it must be exercised.
Discretion in the Immigration Rules and Home Office guidance
The Immigration Rules contain a number of provisions that require the Home Office caseworker assessing an immigration application to exercise discretion.
One example is paragraph 9.7.1., which states, "An application for entry clearance, permission to enter or permission to stay may be refused where, in relation to the application, or in order to obtain documents from the Secretary of State or a third party provided in support of the application: (a) false representations are made, or false documents or false information submitted (whether or not relevant to the application, and whether or not to the applicant's knowledge); or (b) relevant facts are not disclosed."
The use of the term "may be refused" indicates that the caseworker must exercise their discretion in deciding whether to refuse the application on this basis.
Contrast this with paragraph 9.7.2., which states, "An application for entry clearance, permission to enter or permission to stay must be refused where the decision maker can prove that it is more likely than not the applicant used deception in the application." Here, the phrase "must" indicates that this is a mandatory ground for refusal.
Similar language is seen throughout the Rules, and more widely in Home Office policy documents. For example, Part 3 of the Home Office's guidance for organisations sponsoring migrant workers sets out various grounds under which the Home Office may revoke a sponsor licence. Annex C1 is titled "circumstances in which we will revoke your licence" – these are mandatory grounds for revocation. Annex C2 is titled, "circumstances in which we will normally revoke your licence", and Annex C3 is titled, "circumstances in which we may revoke your licence" – both of these will require the exercise of discretion.
Exercising discretion outside of the Immigration Rules
The Immigration Act 1971 confers on the Secretary of State (and, in effect, the officials acting on his behalf) wide powers to grant, refuse, vary or cancel leave to enter or remain in the UK. Generally, these powers are exercised in accordance with the Immigration Rules. However, as the Supreme Court has confirmed, "It is still open to the Secretary of State in her discretion to grant leave to enter or remain to an alien whose application does not meet the requirements of the Immigration Rules."
Accordingly, even if a requirement of the Immigration Rules is framed in mandatory terms (e.g. the applicant "must" meet a certain requirement), it is still open to the caseworker to consider whether, on the facts of the case, to exercise discretion to waive the requirement and grant leave nonetheless. If the applicant is seeking to enter or remain in the UK under an existing immigration route (e.g. as a Skilled Worker, or as a partner), the caseworker may still choose to grant them leave under that route. Alternatively, if the Applicant is seeking to enter or remain for a purpose not covered by the Rules, the caseworker may grant them Leave Outside the Immigration Rules ("LOTR") or Discretionary Leave (note that this latter category is a technical term, and does not refer to all leave granted on a discretionary basis).
A decision to exercise discretion in such instances can be made if considered appropriate on the particular facts of the case – generally, where the circumstances present sufficiently compelling or compassionate reasons for granting leave. Factors that might influence a decision include the Secretary of State's public law duty to act in a procedurally fair manner; its public sector equalities duties; its duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to take into account the need to promote the best interests of children; and its duty under section 6 of the Human Rights Act 1998 to act in a manner compliant with Convention rights.
It should be stressed that this discretion to waive a requirement of the Rules (or to grant LOTR) is not likely to be exercised regularly or lightly. An argument that discretion should be exercised to grant an application because a requirement of the Immigration Rules was almost but not quite met (a "near miss") is unlikely to cut the mustard, as the Court of Appeal has affirmed.
Immigrtion Concessions
As well as exercising discretion on a case-by-case basis, the Home Office also from time to time introduces "concessions". These are policies that effectively relax the requirements of the Immigration Rules in relation to a whole class of applicants: for example victims of domestic abuse, dependants of Hong Kong British Nationals (overseas) visa holders where the main applicant has died during the application process, or (previously) people who were unable to leave the UK during the COVID-19 pandemic.
When there is a concession in place, the caseworker will technically be exercising the Secretary of State's discretion to grant leave outside of the Immigration Rules. However, this does not mean that they are truly exercising discretion in practice. A concession is a statement of Home Office policy, so must be applied fairly and consistently – and must be followed unless there is good reason not to do so. Indeed, as the Supreme Court has made clear, in some circumstances a concession may be of equivalent legal status to the Immigration Rules themselves: "If a concessionary policy statement says that the applicable rule will always be relaxed in specified circumstances, it may be difficult to avoid the conclusion that the statement is itself a rule "as to the practice to be followed" within the meaning of section 3(2) [of the Immigration Act 1971] which should be laid before Parliament."
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.