Details of how to apply under the HSMP Forum ILR Judicial Review

The Border Agency has today published a guide to their policy on the recent HSMP Forum ILR Judicial Review judgment of 6th April 2009. You can find more information about the background of this judgment here.

We should first state that the policy information released by the Border Agency is not conclusive on all points; indeed it even contradicts itself on numerous occasions. As such we have raised additional questions with Border Agency management. What follows is a summary of the policy as we understand it.

Who is affected by this change in policy?

The new rules definitely affect anyone who had an HSMP Visa approved before the 3rd April 2006. We are currently seeking an explanation as to whether the policy affects individuals who applied for or received an HSMP approval letter before the 3rd April 2006 but applied for their visa (entry clearance or leave to remain) after the 3rd April 2006. Our view is that these individuals are affected, but we are seeking further clarification on this point.

Unfortunately the Border Agency has decided not to extend this new policy to cover individuals who were accepted onto the Work Permit arrangements before the 3rd April 2006. As such, these individuals will need to wait until they have completed 5 years in the UK before they can apply for Indefinite Leave to Remain.

Time spent on a work permit can only count towards the 4 years needed for ILR under this policy if it was a period before the individual was accepted onto the HSMP (this must still have occurred before 3rd April 2006).

If I am affected by the change in policy, what should I do?

Individuals who are affected by the change in policy will fall into one of five categories:

1. If you have already applied for and received ILR after spending 5 years in the UK;
a. You are entitled to a refund of the Border Agency fee if you applied for a second visa extension.
b. You are also entitled to apply for Citizenship straight away, regardless of whether they have completed one year with ILR.

2. If you have completed 4 years in the UK with the most recent period being on the HMSP (or possibly the Tier 1 (General) scheme, although we currently seeking clarification on this) and are waiting until the end of the 5th year before applying for ILR;
a. You can apply for ILR straight away.
b. You are also entitled to a refund of the Border Agency fee if you applied for a second visa extension.

3. If you have not yet completed four years in the UK;
a. You can apply for ILR after being in the UK for 4 years on the HSMP (or possibly the Tier 1 (General) scheme, although we currently seeking clarification on this)

4. If you applied for ILR after 4 years and the application was refused;
a. You can request their original ILR application to be reviewed.
b. You will be deemed to have had ILR from the date on which they completed four years in the UK.

5. If you have completed 4 years in the UK and have a Further leave to Remain application pending with the Border Agency;
a. You will be invited to vary your FLR application to one for ILR.

If you fall into one of the categories above and are entitled to make an application for either ILR or Citizenship we would suggest that you make your application as soon as possible. We anticipate large numbers of applications being submitted in the coming weeks and this will undoubtedly increase waiting times. In particular, if you would like to submit your application using the same day service, please be aware that Public Enquiry Office (PEO) appointments are likely to be in very high demand.

If you would like any more information regarding the new policy, or would like to make an application for either ILR or Citizenship, please get in touch with us and we will be happy to assist.

(This decision follows an earlier judicial review concerning the right of Highly Skilled Migrant Programme Participants to extend their stay under the criteria in place when they first applied. Click here for more information on this earlier High Court decision, reached in April 2008).