New (Old) Rules for ILR under the Highly Skilled Migrant Programme

Introduction

UKBA has issued its response to the High Court ruling in the HSMP Forum (UK) Ltd case. On 6 April 2009, Mrs Justice Cox determined that individuals in the UK as highly skilled migrants prior to 3 April 2006 had been unfairly prejudiced by the change in the Indefinite Leave to Remain (ILR) rules which increased the qualifying threshold from 4 years continuous residence to 5. UKBA has now made provision for those individuals who held permission to remain in the UK under the old Highly Skilled Migrant Programme, (HSMP). Such individuals will now be entitled to either benefit from a quicker route to indefinite leave to remain or otherwise receive a refund for expenses which would not otherwise have been incurred.

UKBA response is in the form of a policy document which covers migrants who:

a.received an HSMP approval letter issued on the basis of an application made before 3 April 2006; and

b.were granted Entry Clearance or Leave to Remain (LTR) on the basis of that letter; and

c.fall into one of the following five categories:

i.have already settled in the United Kingdom under HSMP or Tier 1 (General) on the basis of having completed five years continuous residence in a qualifying category; or

ii.have completed four years continuous residence in the United Kingdom in a qualifying category; or

iii.are coming up to having completed four years continuous residence in the United Kingdom in a qualifying category; or

iv.those who applied for ILR after four years, were refused, and either:

1.won an appeal against the refusal decision and were then granted permission to stay; or

2.did not appeal the refusal decision or their appeal was dismissed; or

v.those who have completed four years continuous residence in the United Kingdom in a qualifying category and have submitted an application for Further Leave to Remain (FLR).

An individual satisfying one of the above criteria, will be eligible for consideration for ILR under UKBA's policy document if:

a. they have spent a continuous period of four years lawfully in the United Kingdom, of which the most recent period must have been spent with leave as a highly skilled migrant, and the remainder must be made up of leave as a highly skilled migrant, leave as a work permit holder, leave as an Innovator or leave as a Tier 1 (General) migrant;

b. they have applied to enter onto the HSMP before the qualifying period for Indefinite Leave to Remain (ILR) was increased from four to five years on 03 April 2006, and was successful in that application;

c. throughout the four years spent in the United Kingdom they have been able to maintain and accommodate themselves and any dependants adequately without recourse to public funds;

d. they are lawfully economically active in the United Kingdom in employment, self-employment or a combination of both.

Certain individuals may be eligible for a refund of fees paid for applications lodged to extend their permission who would otherwise have been entitled to apply for ILR.

Those who have already settled in the United Kingdom under HSMP or Tier 1 (General) on the basis of having spent completed five years continuous residence in the UK in a qualifying category

These migrants gained an initial grant of one year’s leave under the HSMP requirements, then extended their initial year grant by a further three years, and were subsequently required to make a second extension application in order to have completed five years continuous residence in the UK.

They will be allowed to apply for a one-off payment to cover the cost of the second extension application which would not otherwise have been required.

Importantly, given the changes to the naturalisation process outlined in the The Borders, Citizenship and Immigration Bill, these migrants will also be considered to have obtained ILR from when they had first completed four years qualifying residence for the purposes of any subsequent citizenship application.

Affected migrants must apply for the payment before 20 May 2010.

Those who have completed four years continuous residence in the United Kingdom in a qualifying category
These migrants gained an initial grant of one year’s leave under the HSMP requirements, then extended their initial year grant by a further three years, and were subsequently required to make a second extension application in order for them to complete the fifth years’ continuous residence in the United Kingdom.

They will be allowed to apply for ILR after they have completed four years qualifying residence. They will also be allowed to apply for a one-off payment to cover the cost of the second extension application which would not have otherwise been incurred.

Those who are coming up to having completed four years continuous residence in the United Kingdom in a qualifying category
These migrants gained an initial grant of one year’s leave under the HSMP requirements, or a grant of two years where their application was made before 3 April 2006 but not approved until after this date, and then extended their initial year grant by either three or four years.

They will be allowed to apply for ILR after they have completed four years qualifying residence.

Those who applied for settlement after four years, were refused, and either:

i. won an appeal against the refusal decision and were then granted permission to stay; or
ii. did not appeal the refusal decision or their appeal was dismissed.

These migrants will be entitled to apply for their original ILR application to be reviewed in line with this published policy.
If successful, the migrant's leave will be varied to ILR under HSMP.

As above, migrants who are successful in their ILR application will also be considered to have first obtained ILR from when they had completed four years qualifying residence for the purposes of any subsequent citizenship application.

Those who have completed four years continuous residence in the United Kingdom in a qualifying category and have submitted an application for FLR

These migrants gained an initial grant of one year’s leave under the HSMP requirements, then extended their initial year grant by a further three years, and have now made a second extension application in order to complete five years continuous residence in the United Kingdom.
They will be invited to vary their application to an ILR application under the terms of the policy document.

Dependants
Dependants of affected individuals will be entitled to vary their permission in line with that of their main applicant.

General Grounds for Refusal
UKBA has emphasised that those migrants who fall for refusal under the general grounds provided in the immigration rules, (320-322 of HC395, as amended) will have their applications refused even if they otherwise meet the requirements of the policy document. The most common reasons for refusal are that the applicant fails to disclose relevant information in the application or has a criminal conviction.

If you are affected by the above changes and would like our assistance with your immigration matters, please contact us on +44 (0)20 7038 3980 or e-mail us at info@rlegal.com.

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DISCLAIMER: The information on this brief guide is correct to the best of our knowledge and belief. However, it is written as a general guide only and it is strongly recommended that specific advice is sought before action is taken.