Home Office concedes discretion to preserve previous residence after overstaying on 10-year route to settlement

The Home Secretary has conceded that she has discretion to disregard periods of overstaying for the purposes of the 10-year route to settlement, even where an applicant has not yet submitted a paid application for indefinite leave to remain (ILR), Greater Manchester Immigration Aid Unit (GMIAU) and Doughty Street Chambers reported last week.

The concession follows a legal challenge brought by GMIAU, with representation by Doughty Street's Alasdair Mackenzie KC and Rowena Moffatt, concerning the application of the Home Office's Applications from Overstayers policy and the continuity of qualifying residence under the route.

The case concerned MMM, a Jamaican national who has lived in the UK since 2000 and has a British daughter. She has been on the 10-year route to settlement since 2016, but in 2022 she inadvertently became an overstayer after missing an email confirming that her fee waiver application had been granted. She consequently failed to submit her application for further leave to remain within the required timeframe.

According to GMIAU and Doughty Street Chambers, the Home Secretary conceded the case before a substantive Upper Tribunal (Immigration and Asylum Chamber) hearing scheduled for early November.

Under the terms of the settlement, the Home Secretary agreed to withdraw her previous refusal to disregard MMM's period of overstaying and issue a fresh decision within three months. She accepted that the Applications from Overstayers policy applied to MMM's request, even though it had not been made as part of a paid application for ILR, and agreed to consider exercising discretion under the policy's provisions on exceptional or compassionate circumstances. In doing so, the Home Secretary will take into account that the overstaying was unintentional.

The settlement clarifies that, if the Home Secretary exercises discretion in MMM's favour, her previous period of lawful residence will count towards the 10-year qualifying period for ILR, without the clock being treated as having restarted when she was subsequently granted further leave. The period of overstaying itself would be disregarded, rather than counted as lawful residence.

GMIAU and Doughty Street Chambers said the outcome could have wider implications for people who have lost progress towards settlement after periods of overstaying, as it clarifies when requests to disregard overstaying can be made and the policy test that applies.

GMIAU noted that others who have "fallen off" the 10-year route may also be able to ask the Home Secretary to apply the Applications from Overstayers policy to their circumstances, potentially allowing previously accrued periods of continuous lawful residence to count towards the 10-year qualifying period for ILR, rather than losing those years when their leave was interrupted.

GMIAU commented: "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."

Doughty Street Chambers added: "Given, as is well known and as has been referenced here, that large numbers of people have 'fallen off' the [10 Year Route to Settlement], providing clarity around both the point at which requests to disregard periods of overstaying on the 10YRS can be made; and the test that will be applied to the [Secretary of State for the Home Department's] exercise of discretion in such requests has significant importance beyond this case."

The sealed order settling the proceedings can be downloaded here from GMIAU.