Leave Outside the Immigration Rules

Leave Outside the Rules (LOTR)

The UK Immigration Rules are complex and often rigid. In many cases, migrants who wish to stay in the UK simply cannot fit their circumstances into any of the standard visa categories, no matter how compelling their situation may be. In such cases, there may still be an option available: Leave Outside the Rules (LOTR).

This is permission granted by the Home Office using its discretion under the Immigration Act 1971, where an application does not meet the requirements of the Immigration Rules but refusing it would result in harsh or unjust consequences. While the discretion is limited, and the grant of LOTR is relatively rare, it remains an important safeguard for individuals in exceptional situations.

What Is Leave Outside the Rules?

Leave Outside the Rules is permission to remain in the UK granted on an exceptional basis. It is not codified within the Immigration Rules themselves but is instead considered under Home Office policy guidance. Applications are assessed on a case-by-case basis, and a grant of leave will only be made in very specific circumstances.

Examples of where LOTR may be granted include:

• Discretionary Leave (compassionate or compelling reasons not covered by other routes)
• Article 3 medical cases where removal would breach the prohibition against inhuman or degrading treatment
• Victims of modern slavery or human trafficking
• Compelling compassionate grounds, such as emergencies or crises
• Human rights cases, particularly under Article 8 (family and private life) of the European Convention on Human Rights

Treatment Contrary to Article 3 of the ECHR

Article 3 of the European Convention on Human Rights states that: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The nature of Article 3 has led to a very high threshold and to reach the Article 3 threshold, ill treatment must attain a minimum level of severity and involve actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual, it may be characterised as degrading and also fall within the prohibition of Article 3. The same threshold will apply in Humanitarian Protection cases.

Examples of treatment contrary to Article 3

• Torture: Torture involves the deliberate infliction of inhuman treatment that causes very serious suffering physical and/or mental suffering. It implies implies deliberately inflicted suffering of particular intensity and cruelty.
• Inhuman treatment or punishment: Inhuman treatment does not necessarily need to be deliberately inflicted, but it must reach a high threshold of severity. Whether this threshold is met will depend on the circumstances of each case, including the victim’s age, sex, health, level of vulnerability and the duration of the treatment or punishment. In some circumstances, even the threat of torture – if sufficiently real and immediate – can cause such severe mental distress that it amounts to inhuman treatment.
• Degrading treatment or punishment: Treatment or punishment may be considered degrading if it creates feelings of fear, anguish or inferiority that humiliate and debase the individual, potentially breaking their physical and moral resistance. Severe discrimination based on race, sex or other grounds is capable of constituting degrading treatment contrary to Article 3 where the minimum level of severity is attained. The assessment depends on whether a reasonable person of the same age, sex, and health would have felt degraded in the same circumstances.
• Treatment by the state: Where ill treatment is directly inflicted by the state, it may arise through legislation, state-sanctioned practices, or actions carried out by state organs such as the police, armed forces, or security services. The concept of “the state” includes the government, its agencies, and any organisation exercising effective control over a significant part of the state’s territory, as reflected in Regulation 3(b) of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006. However, a person will not qualify as a refugee if such a body provides effective protection under Regulation 4.
• Treatment by Rogue state agents: Although they may be agents of the state, unlike state agents, rogue state agents are not acting in a manner authorised or tolerated by the state but are officials who are acting
  outside the authorised scope of their duty. An example of a rogue state agent would be a police officer or a security agent who beats a suspect out of malice and not as part of any state sanctioned policy. Where the treatment emanates from rogue state officials it should not be seen as ill treatment by the state, but the standard of sufficiency of protection required is higher than it is where the treatment is inflicted by non state agents.
• Treatment by non state agents: Ill treatment may also be inflicted by private individuals or groups rather than the state. Such harm can still fall within the scope of humanitarian protection or Article 3 where there are substantial grounds for believing there is a real risk both of harm from non-state actors and of the state being unwilling or unable to provide effective protection. As confirmed in Bagdanavicius (FC) v Secretary of State for the Home Department [2005] UKHL 38, applicants must normally demonstrate that state protection is not reasonably available before claiming international protection.

Medical Claims 

Applicants sometimes argue that removal from the UK would breach Article 3 of the European Convention on Human Rights because they suffer from a serious medical condition and would lose access to treatment currently available to them in the UK. However, the threshold for medical claims under Article 3 is extremely high and will only be met in rare and exceptional cases. The general principle is that a person cannot avoid return on the basis that they should continue to benefit from medical, social or other form of assistance provided in the UK.

To engage Article 3 of the ECHR, applicants must provide evidence that there are substantial grounds for believing that they would face a real risk of being exposed to either a serious, rapid and irreversible decline in their state of health resulting in intense suffering or a significant (substantial) reduction in life expectancy as a result of either the absence of treatment or lack of access to such treatment.

An improvement in an applicant’s medical condition resulting from the interim treatment together with a prospect of serious or fatal relapse on expulsion will not render expulsion inhuman treatment contrary to Article 3. Where an applicant’s suffering on return will not result from deliberately inflicted harm, the threshold set by Article 3 is particularly high. To meet the Article 3 threshold, an applicant will need to show exceptional circumstances that prevent return, namely that there are compelling humanitarian considerations such as the applicant being in the final stages of a terminal illness without prospect of medical care or family support on return.

What is the test?

The test is “whether the applicant’s illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity” (from the case of N (FC) v SSHD [2005] UKHL 31).

In order for an applicant to establish that there would be a breach of Article 3 on medical grounds if they were removed from or required to leave the UK, the applicant must show that there are substantial grounds for believing that:

• They would face a real risk of being exposed to either:

a) a serious, rapid and irreversible decline in their state of health resulting in intense suffering, or
b) a significant reduction in life expectancy – (‘significant’ means ‘substantial’) and whether a reduction in life expectancy is substantial will depend on the facts of the case 

And

• The serious, rapid and irreversible decline in health leading to intense suffering and/or the significant reduction in life expectancy must be as a result of either:
  • • the absence of appropriate treatment in the receiving country, or
    • the lack of access to such treatment