Q&As

Is there a discretion for the Home Office to grant the right to work in exceptional circumstances where for example an applicant is a principal breadwinner and only has means to support his family for a short period of time? Where is the residual discretion of the Home Office in immigration matters derived from and what is the scope of this discretion?

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Produced in partnership with Gary McIndoe of Latitude Law
Published on LexisPSL on 01/03/2018

The following Immigration Q&A Produced in partnership with Gary McIndoe of Latitude Law provides comprehensive and up to date legal information covering:

  • Is there a discretion for the Home Office to grant the right to work in exceptional circumstances where for example an applicant is a principal breadwinner and only has means to support his family for a short period of time? Where is the residual discretion of the Home Office in immigration matters derived from and what is the scope of this discretion?

The powers of the Home Secretary to regulate the entry and residence of foreign nationals, while originally founded in the Crown’s prerogative powers, are now almost entirely set out in statute and subordinate legislation, notably the Immigration Rules. Discretion remains a feature of UK immigration control, but it may only be employed where the outcome for the individual or organisation affected is more advantageous than it would be under statute and rules.

The source of this well recognised discretion, prerogative or statute, while largely of academic interest, has been the subject of debate over the years. The authors of The prerogative: Macdonald's Immigration Law and Practice [1.33] express the following view:

‘Our view has consistently been that it derives from the Secretary of State's statutory powers, and, in particular, from the discretion under section 4(1) of the Immigration Act 1971, which is a very broad discretion, not made subject to the Immigration Rules. The Secretary of State can, therefore, waive a requirement of the Rules in an individual case as a matter of statutory discretion.’

Discretion therefore exists, but how and when is it exercised? The most common approach over the years has been th

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