Mick
Did your solicitor apply for exceptional/discretionary leave to remain (ELR) or indefinite leave to remain (ILR)?
The situation with BOCs who are otherwise stateless and non-returnable (in "limbo") is detailed below. You may wish to consult another solicitor who may be able to advise whether you can apply for discretionary exceptional leave to remain.
If you can show that the Malaysian government will not re-admit you as a permanent resident, then you may be able to apply. However, this is discretionary and there is no right of appeal, and they will not want to give ELR to someone who deliberately renounced their citizenship to evade immigration control
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9. DISCRETIONARY LEAVE AND "LIMBO"
In some cases a BOC will claim that his nationality obliges the UK to allow him to
remain. In considering such cases we must be aware that no country routinely
accepts non-citizens and that we cannot force a BOC to go somewhere else. There
is a balance between those who genuinely find themselves with nowhere to go and
those seeking to circumvent the Immigration Rules.
UKPH applicants who make an application for exceptional LTR/ILR and have no
claim to remain under the Rules are to be refused unless there are compelling
compassionate circumstances present or there is clear evidence of non-returnability.
(See paragraph 9.1).
Applications made for a purpose not covered by the Rules should be refused under
paragraph 322(1). This will attract the right of appeal if the application is in time.
9.1. Granting discretionary leave
Discretionary leave for a period of 6 years (3 years followed by 3 years) may be
granted to British Overseas citizens and other UKPHs only if one of the following
factors are present:-
• There is clear evidence of compassionate circumstances. This should be
assessed according to the individual merits of the case but discretion would
normally only be granted in wholly exceptional circumstances. Cases should not
be agreed below Senior Caseworker level.
or
• There is clear evidence of the persons non-returnability. This should take the
form of a letter from the appropriate authorities of the country of normal residence
confirming the person's non-returnability, e.g. a refusal to issue a re-entry visa.
The applicant should also be asked for a copy of his/her application to those
IDI Nov/04 CH22 SECT2 – UNITED KINGDOM PASSPORTS
authorities if available. Cases should not be agreed below Senior Caseworker
level.
Subsequent grants, of exceptional leave, including the grant of ILR, may be approved
at EO level if the circumstances remain the same.
In all cases the onus is on the applicant to provide the necessary evidence.
Prolonged enquiries are to be avoided. All relevant questions should be asked in a
single letter of enquiry. Failure to reply to such a letter within 4 weeks should trigger
the usual reminder followed by a refusal if there is still no reply after a further 28
days.
A person who refuses to apply for a re-entry visa to the country in which he is
normally resident should not be given discretionary leave. The expectation must be
that UKPHs will apply for the equivalent of returning resident or settlement visas and
those who manage to obtain these should not be granted discretionary leave.
There will be cases where a visit visa is issued to enable a compassionate or other
visit to take place. In these circumstances it would be wrong to withhold
discretionary leave, providing they are able to produce evidence as set out above to
satisfactorily demonstrate that they are not returnable to their country of origin for the
purpose of settlement. This applies equally to first time applicants and those who
have already had XLTR for a number of years, and have since been issued with a
visit visa. Where a person has held XLTR for a number of years the evidence of the
refused settlement visa should be recent. All cases where a visit visa has been
issued should be referred to at least Senior Caseworker level.
ILR may be granted after 6 years have been spent in this category assuming the
circumstances remain the same. The initial grant of discretionary leave should be for
3 years, followed by a further 3 years and, after 6 years, ILR.
9.2. No right of appeal and dismissed appeals
In cases where UKPHs fail to embark after refusal where there is no right of appeal
or where there is a right of appeal and the appeal has been dismissed, the usual
warning letter should be sent and the file should be passed speedily to EPU for
deportation consideration.
9.3. Applying the limbo policy
The so-called limbo policy is applicable only after the exhaustion of all the usual
administrative processes, including deportation. Only after EPU have decided that
further deportation action is not appropriate or feasible, or illegal entry action has
been abandoned, should consideration be given to applying the limbo policy.
If it is decided that the status of the UKPH should not be regularised, the applicant
should be notified in writing of their position under the limbo policy. ANNEX C
provides a copy of a stock letter which may be used for this purpose. The
applicant has no right of appeal against the decision not to regularise their stay.
