HSMP ILR Judicial Review Judgment of April 2009

Frequently Asked Questions

 

Frequently Asked Questions (FAQ) for the HSMP Forum Ltd’s HSMP Indefinite Leave to Remain (ILR) Judicial Review 2 (JR2)

  1. What is Judicial Review 2 (JR2)

 

Prior to 3 April 2006 the continuous residence requirement for ILR under the Highly Skilled Migrant Programme (HSMP) was four years. This requirement was increased to five years on 3 April 2006. The HSMP Forum Ltd brought a Judicial Review on the grounds that those who entered onto the HSMP before the qualifying period for ILR was increased should be eligible to apply for ILR after four years on the scheme. The judge ruled the case in favour of the HSMP Forum. A copy of the judgment can be found at the following web address: http://www.bailii.org/ew/cases/EWHC/Admin/2009/711.html

 

  1. What does the court order say?

Please check the following web link: 

http://www.hsmpforumltd.com/hsmpilrjr2courtorder.html

  1. Where can I find the remedies put in place by UKBA to implement the Judgment ?

Please click on the link below

http://www.ukba.homeoffice.gov.uk/workingintheuk/tier1/hsmp/hsmp-judicial-review-09/

  1. Who will benefit from JR2?

You should have made an application for HSMP approval before 3 April 2006 which was successful (even if the actual approval letter was received after 3 April 2006) and you have subsequently (before or after 3rd April 2006) got your entry clearence or leave to remain.

  1. What does this mean in terms of various combinations of visas/categories?

Assuming you satisfy the above condition JR2 covers the following scenarios:

a.    (1 + 4 ) - Initial HSMP Visa of 1 year & then received extension of 4 years

b.    (1 + 3 + 3) - Initial HSMP Visa of 1 year followed by 1st extension of 3 years and then 2nd  extension of another 3 years

c.    (2 + 3 ) - Initial HSMP Visa of 2 years & then received extension of 3 years

(Please note: this scenario applies only if HSMP application was made prior to 3 April 2006 because 2 years of initial HSMP visa started after 3 April 2006)

d.    As long as you satisfy the condition mentioned in question 3, you can combine a WP & HSMP visa combination to complete the 4 years e.g. (WP + 1 + 4) or (WP + 1 + 3 + 3). Your most recent stay though should have been on highly skilled migrant scheme (HSMP or Tier 1)

  1. I have already completed 5 years and also received my ILR? What are my remedies and how do I proceed with Citizenship?

You will be able to apply for a one-off payment to cover the cost of your 2nd extension. To receive this you must complete a request form, which you can download from the UKBA website or click on link below and send it to the address given on the form. UKBA will make the one-off payment by cheque to the person listed as the main applicant in the 2nd application. You must apply for the one-off payment described above before 20 May 2010

http://www.ukba.homeoffice.gov.uk/workingintheuk/tier1/hsmp/hsmp-judicial-review-09/settled-after-five-years/

Along with the refund they are expected to issue you a letter confirming that you will be considered to have been settled in the United Kingdom from the point when you first completed four years qualifying residence. If you apply for citizenship, you will need to send the letter with your application as confirmation of your position though UKBA's system may reflect that.

   7.   Who is eligible to apply for refund ?  

All those who paid for second extension on HSMP due to the April 2006 ILR changes. Also those whose dependants had to make a separate application for extension (over 18)  due to the April 2006 ILR changes.

  1. I have already completed 5 years but not received ILR, can I apply for Citizenship directly?

No, you cannot apply for Citizenship directly. You will first need to get your ILR stamped as a procedural matter and then apply for citizenship immediately

  1. I have already completed 4 years and got my 2nd extension, now what do I do?

Apply for ILR using the new forms. You should be issued refund automatically by UKBA for your 2nd extension application fee which you paid earlier, check the below link for more information.

http://www.bia.homeoffice.gov.uk/workingintheuk/tier1/hsmp/hsmp-judicial-review-09/four-years-residence/

  1. Which forms do I use for my 4 year ILR application?

The updated forms are uploaded by the UKBA on their website. Please click on the link below

http://www.bia.homeoffice.gov.uk/workingintheuk/tier1/hsmp/hsmp-judicial-review-09/four-years-residence/

  1. Do I have to pay the new ILR processing fees or the old fees which existed when I completed 4 years?

New Processing fees

  1. My current extension is a Tier 1 (general), am I covered?

Yes as long as you meet the condition mentioned in Question # 4 (Who will benefit from JR2?)

  1. Can I apply in person at a PEO?

Yes

  1. Do I need to pass the “Life in the UK” or language test prior to my application?

No, you do not need to give the LIUK or language test prior to application as this was not a condition under the original HSMP scheme neither will your spouse and any dependent over 18 years will be required to take it.

  1. Will I get a backdate ILR or ILR as of the current date accompanied with a letter from UKBA confirming period spent over 4 years will count towards citizenship?

Yes.

  1. I applied and received my HSMP between April 2006 and November 2006. Will I be able to apply for ILR in 4 years?

No, you will be able to apply for ILR only after completing 5 years.

  1. When does my 4 year qualifying period start for ILR?

There are 2 scenarios here:

a.   If you got your Entry Clearance from outside of UK, then it starts from the date when you physically entered UK i.e. on the date when the immigration officer stamped your passport at the airport

b.   If you got your leave to remain when you were within UK, then the 4 year countdown starts from the date when your leave to remain was stamped

  1. How much time period can be allowed to spend outside UK in 4 yr time period?

The total allowance for period allowed to spend outside of UK in the 4 years is 180 days. Day of departure from UK and day of arrival in UK are excluded for this purposes. Also Business trips and paid annual trips are excluded from this allowance

  1. Can HSMP Forum process my application form?

Sorry, we do not provide any such commercial services. Application submission is a very simple and straightforward affair. You should be able to do it yourself. You can discuss it at our message board (http://forum.hsmpforumltd.com) to get help from our team and members who have submitted it earlier.

HSMP Forum is a non-profit organisation, which assists and supports skilled migrants. We campaign against unfair policies to safeguard immigrants’ rights.

  1. Can you refer some Solicitors for submitting my extension application?

If you need a representation then check the following link and you can find one - Find a Solicitor>> 

In case you have an emergency requirement and find it difficult to locate one then email us at info@hsmpforum.org for some references. Alternatively check our resources section.

- HSMP Forum Team

   http://www.hsmpforum.org  /

   http://www.hsmpforumltd.com

 
 
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