Would welcome an opinion on this. Client and his wife were granted discretionary leave to remain for 1 year from December 2004. He applied for an extension the following December but was refused. His appeal (heard September 2007) was unsuccessful. His solicitor has requested the HO reviews the application under the legacy provisions (not sure what that means) but there is no decision yet. Does he currently have recourse (on the basis that he is still effectively applying for extension of original discretionary leave) or not?

I don't know what the legacy provisions are either but it seems that benefit can continue to be paid if the review is requested under section 103A(1) of The Nationality, Asylum and Immigration Act 2002 (see section 104 of that act and section 3C of The Immigration Act 1971).

Thanks for that Nevip. I am going to recommend the client speaks to his solicitor to check what his current status is. What concerns me is that there seems to have been a gap of 18 months between his losing his appeal and the new application. However, hopefully the solicitor can shed some more light on my client's current status.

Hi

Discretionary Leave to remain is time limited form of leave to remain - whereby the Home Office can give say 6 months up to 3 years permission to stay in the UK. It confers entitlement to public funds and health care etc. However, the entitlement to public funds ends with the expiry of the time limit - so it will say on the Immigration Status Document the date of expiry. But if an in time application for extension is made to the home office within 28 days before the expiry date then entitlement to public funds continues until the home office determines the outcome of the application for extension. At this point they can either refuse or renew the leave. It can take the home office several years to determine cases.

If an in time application for extension has not been made - then there is no recourse to public funds as i understand the matter. If this is the case one should not attempt to claim benefits.

Basically - you need to be very clear about the nature of the immigration status and this is best sorted out with a solicitor.

The so called legacy provisions refers to the resolution of unsolved claims for asylum. The home office estimated that there were perhaps four hundred thousand cases still outstanding with cases still having to be determined after more than 10 years. Clearly this is a big problem for the government. Realistically the government had no way of tacking such a huge backlog under immgration law. It would take years to look at these cases fully under the legal process. The government decided to solve the problem by taking these cases outside of the immigration rules and determing the cases administratively without being bound by immigration law. The cases are looked at on a case by case basis. The home office expect to be finished by 2011.

Thanks for that. Have now had an opportunity to speak to the client's solicitor and have established client has no current recourse. All your contributions were appreciated.