GMIAU and Doughty Street Chambers believe recently conceded case is an important legal victory with wider implications
10-Year Route to Settlement 2026: Major Home Office Legal Victory for Overstayers. The Greater Manchester Immigration Aid Unit (GMIAU) and Doughty Street Chambers state that last week, the Home Secretary conceded she has the discretion to disregard periods of overstaying for the purposes of the 10-year route to settlement, even where the applicant has not yet made a paid application for Indefinite Leave to Remain (ILR).
The concession comes after GMIAU, represented by Alasdair Mackenzie KC and Rowena Moffatt of Doughty Street, challenged the Home Office’s Applications from Overstayers policy in a judicial challenge, and the continuity of qualifying residency under the route.
Case Involved a Jamaican National Who Accidentally Overstayed
The case involved a Jamaican national, MMM, who has lived in the UK since 2000 and who had a British daughter. She has been in the 10-year road to settlement since 2016, but in 2022 she inadvertently became an overstayer after missing an email indicating her application for a fee waiver had been granted. She failed to submit her application for further leave to remain within the required timeframe.
The Home Secretary surrendered the matter ahead of a substantive Upper Tribunal (Immigration and Asylum Chamber) hearing due in early November, according to GMIAU and Doughty Street Chambers.
Home Office Agrees to Reconsider Overstaying Decision
As part of the settlement the Home Secretary has agreed to retract her prior rejection to disregard MMM’s time of overstaying and to make a fresh decision within three months. She accepted that the policy on Overstayers’ Applications applied to MMM’s request, albeit not submitted as part of a paid application for ILR, and agreed to consider exercising discretion within the terms of the policy on extraordinary or compassionate circumstances. In so doing the Home Secretary will have regard to the fact that the overstaying was accidental.
The Settlement states that if the Home Secretary uses discretion in favour of MMM, the time of her prior lawful residence will contribute toward the 10 year qualifying period for ILR and the clock will not be viewed as having re-started when she was subsequently granted extended leave. The time of overstay would be disregarded in itself and not treated as valid residence.
Wider Implications for Migrants on the 10-Year Route to Settlement
The judgement also has wider ramifications for those who have lost progress toward settlement during periods of overstaying, since it specifies when requests to disregard overstaying can be made and the policy test that applies, GMIAU and Doughty Street Chambers noted.
GMIAU said that those who had also “fallen off” the 10-year route may be able to apply to the Home Secretary to apply the Applications from Overstayers policy to their circumstances, which may allow previously-accrued periods of continuous lawful residence to be counted toward the 10-year qualifying period for ILR, rather than losing those years when their leave was interrupted.
GMIAU Calls MMM Case a Crucial Legal Victory
“The MMM case is a crucial legal victory,” GMIAU said. It indicates that individuals can seek periods of overstaying to be disregarded without first submitting a paid application for ILR and sets out the test the Home Secretary will use when assessing 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.”