HSMP Forum ILR Judicial Review action successful

At 2pm today, the 6th April, the High Court announced its decision that the Home Office has acted unlawfully in raising the number of years HSMP holders need to remain in the UK in order to qualify for Indefinite Leave to Remain. Individuals who were accepted under the Highly Skilled Migrant Programme (HSMP) before the 3rd April 2006 were told that they would qualify for ILR at the end of 4 years on the programme. The Home Office changed this rule in April 2006 so that individuals needed to remain in the UK for five years in a suitable category (or combination of such categories).

In October 2008, a Judicial Review application was filed with the High Court in order to determine whether this change of rules and its retrospective application was unlawful. It has now been determined that retrospective application of these rules to those individuals who had been accepted onto the HSMP (and had a legitimate expectation that they would qualify for ILR after four years rather than five) is and always has been, unlawful.

Who does this ruling affect?

This ruling will probably affect you if you were accepted onto the HSMP before 3rd April 2006. However, it will most likely depend on what you have done since being accepted onto the HSMP. At the moment, it is unclear whether it will affect those who switched out of the highly skilled category, and those who left the UK as a result of not qualifying for ILR. The previous HSMP Judicial Review ruling would suggest that arrangements will be made for these individuals, but so far at least, this is uncertain.

This ruling may affect you if you were accepted onto another form of visa before 3rd April 2006. This is also unclear at the moment, but given that work permit holders were also told that they would qualify for ILR after 4 years, arrangements may be made for these individuals as well.

How will this ruling affect me?

If you are affected by the ruling and have not yet applied for Indefinite Leave to Remain but have been in the UK for 4 years in a suitable category (or combination of such categories) it is likely that you will be permitted to make an application for ILR based on those 4 years instead of 5 years.

If after spending 4 years in the UK in a suitable category (or combination of categories) you switched into another category that does not contribute to the 5 year rule for the purposes of ILR or have left the UK as a direct result of the rules changing, you may be able to qualify for ILR, but at the moment, this regrettably is also unclear.

What should I do now?

As of yet, the Home Office has not commented on the ruling and as such we are not yet clear on the precise details of arrangements they will make for those affected. We will update this page as and when new information surfaces.

If you believe that you are affected by the ruling and as a result of it you now qualify for ILR, please get in touch with us and we can offer information and advice regarding your application. If you have any questions regarding the ruling and its effects, please also contact us.