To: UKBA

Sub - Refunds - ILR Judicial Review Implementation !

We are receiving numerous complaints on the refund policy adopted by UKBA towards those HSMP holders who had to apply for FLR at the end of their initial four years of residence in the UK. We found even in reference to those HSMP holders whose first entry to the UK was just 35 days or more after their passports were initially stamped and had to apply for a 2^nd extension (1 + 3 + 3) to fulfil the 5 year stay requirement for ILR are now not being issued with a refund. We are concerned about the basis on which decisions are being made. 

We would like to point out the following;

1.       As far as we are aware, the guidance is as follows. The 2003 guidance notes state (18.2): “If you have been granted permission to stay in the United Kingdom as a Highly Skilled Migrant for four years and wish to remain in the United Kingdom on a permanent basis you can apply at the end of the four-year period for permanent residence. This is otherwise known as indefinite leave or settlement.” At 26.5 the guidance notes further state: “After four years in the UK as a highly skilled migrant you can apply for settlement. The main criteria for settlement will be that you have spent a continuous period of four years in the UK (except for trips abroad of three months or less, totalling less than six months in the four year period) in a category leading to settlement and that you continue to be economically active in the UK as a highly skilled migrant.” At no point does the guidance notes state that individuals would be required to enter UK within a stipulated time period to be eligible to apply for settlement after 4 years in UK without a further extension. The guidance just emphasises on applying for settlement after 4 years i.e. after obtaining extension of 3 years. At the most it can only be argued by UKBA that the initial delay in entering UK for those seeking a refund for the 2^nd extension should not have been more than 3 months.

2.       HSMP, unlike other migrant categories, involves individuals having a clear and stated intention to make the UK their main home. This meant that individuals had to wind up their businesses, jobs, properties and uproot their families.  There are practical reasons why this would not have been possible for many in less than two to three months after the entry clearance / initial HSMP stamping. We believe the guidance notes recognised this and therefore did not mention any specific time period for individuals to enter UK. It would have also been unreasonable and irrational on the part of the Home Office to have expected individuals in this scheme to land in UK the same day they received their entry clearance / initial HSMP stamping.

3. We are aware that in some cases UKBA declined refund to individuals who applied for 2^nd extension much earlier than the expiry of their existing leave to remain. We believe refusing refund in such cases is unfair because individuals who have made an earlier extension application did so based on the rules in place prior to 20^th May 2009 i.e. the requirement of 5 years stay in UK to qualify for ILR. Additionally, we have also found that even though an individual applied for 2^nd extension within 5 weeks of the expiry of the visa still the individual was unfairly declined his refund. This is contrary to the UKBA guidance for those applying for extension that seeks individuals not to apply more than 5 weeks earlier than the expiry of their visa.

4. Our members who benefit from the ILR JR have also been informed that they cannot apply for ILR 28 days before they finish their 4 years even though this seems to be the normal application practice for those who are not covered by the JR.

We believe the Judgment implementation would not be in letter and spirit if refunds are refused in such circumstances mentioned in 1 – 4. I would wait to hear from you before we consider taking further steps in this matter.