MMM has lived in the UK since 2000 and has a British daughter. She had been on the 10-year route to settlement since 2016 and was in regular employment. In 2022 she became an overstayer after missing an email from the Home Office confirming that her fee waiver had been granted, meaning she did not complete her application for further leave to remain within the necessary timeframe. As a result, she was considered to have “fallen off” the 10-year route, despite having already built up almost 6 years’ continuous lawful residence towards settlement.  

When she was granted a further 30 months limited leave to remain in March 2024, her qualifying period restarted, meaning she would not be eligible to apply for indefinite leave to remain (ILR) until at least March 2034. After more than 20 years of living in the UK and building her life here, one missed email could mean another 10 years of waiting to settle permanently, and a further decade of uncertainty for her and her daughter. 

When she applied for further leave to remain in 2023, MMM made a request outside the Immigration Rules for the Home Secretary to grant her ILR or, alternatively, to use her discretion to disregard the period of overstaying. This would mean that the time she had already spent on the 10-year route could still count towards settlement, potentially making her eligible for ILR around July 2028 rather than 2034, provided she met all the other requirements. The Home Secretary refused these requests, leading to our legal challenge. 

During the legal proceedings, the Home Secretary initially accepted that her published policy, Applications from Overstayers, applied to people in MMM's situation who had asked for a period of overstaying to be disregarded outside a paid application for ILR. However, in her later legal response, she argued that she could not apply the policy because she did not have the discretion to disregard overstaying before someone had submitted a paid application for ILR. We challenged this position, arguing that it contradicted her earlier position in these proceedings and in an earlier legal challenge brought by MMM. We also argued that it breached the terms of a consent order from those earlier proceedings and was unfair and unlawful. 

This is significant beyond MMM's case. While MMM needed clarity about when she would be eligible to apply for ILR, there are many others who have "fallen off" the 10-year route and may also be able to request that the Home Secretary apply the Applications from Overstayers policy to their circumstances. This could allow them to retain the years of continuous lawful residence they had built up over previous years before they overstayed and were considered to have "fallen off" the 10-year route, so that this time can still count towards the 10-year qualifying period for ILR.  

The Home Secretary conceded the case before the substantive hearing, which was listed for early November. She agreed to make a fresh decision on whether to use her discretion to disregard MMM's period of overstaying when considering her future eligibility for ILR under the 10-year route. In doing so, she accepted that she has the power to consider such a request even where someone has not yet made a paid application for ILR. 

The Home Secretary also accepted that the Applications from Overstayers policy applies to MMM's request. Under the policy, where someone asks for a period of overstaying of more than 14 days to be disregarded, the relevant test is whether there are exceptional or compassionate circumstances. Importantly, she agreed to take into account that MMM's overstaying was unintentional when deciding whether this test is met.

MMM's case is an important legal win. It shows that people can ask for periods of overstaying to be disregarded without first making a paid application for ILR and clarifies the test that the Home Secretary will apply when considering such a request. The sealed order settling the proceedings can be found here. 

We will continue to challenge the barriers that prevent people from securing settlement and the uncertainty and insecurity created by the 10-year route and even longer routes to settlement as announced by the Home Secretary this week.