Date - 15th April 2009
Our Reference:
Kind Attn:
Lin Homer, Chief Executive, UKBA
Sub – Implementation of HSMP Forum’s
Judicial Review Judgment !
This is in reference to our recent
Judgment (HSMP Forum (UK) Limited Vs SSHD) dated 6th April
2009. In reference to the contents of the judgment and the subsequent
court order I will like to bring to your attention the following
categories and issues which needs to be addressed during our Judicial
Review implementation. We reserve the right to raise any further issues
/ categories at a later date.
Categories / Issues which needs to be addressed
1.
Those migrants who have obtained a second extension on HSMP and have not got their ILR. The fee for their
ILR application should be waived. They should be given ILR back dated or
else a letter should be issued confirming the time spent by those
individuals over 4 years will be counted towards their future
citizenship application.
2.
Those migrants who paid for second extension and
additionally paid for their ILR should be issued a refund for the amount
they paid for their ILR. Migrants who have been granted ILR after 5
years should be allowed to apply for British nationality immediately.
3.
In addition those who paid for their second
extension and thereon ILR and further obtained British Citizenship
should be issued a refund for the amount they paid for the ILR.
4.
Children who have become over 18 years of age due to the extension from
4 to 5 yrs had to apply separately for a visa. That fees needs to be
refunded.
5.
There should be no requirement to submit the Life in
the UK and English language Test when making an ILR application for pre
3rd April 2006 HSMP migrants. These requirements were not
within the terms of HSMP guidance and settlement for those who joined
HSMP before 3rd April 2006. It won’t be in accordance with
the high court order (point 1) and the judgment to apply such new
requirements now.
6.
Those who were on work permit and switched to HSMP
before 3rd April 2006 should be allowed to count the time
spent on work permit also for their 4 years ILR application.
7.
Those migrants (and their dependants) who lost their
Immigration tribunal appeals and either left the UK or were issued with
discretionary leave should be issued a backdated ILR or a letter
acknowledging the time after the ILR refusal will be carried forward for
their citizenship application.
8.
Those migrants (and their dependants) who ended up
becoming overstayers after refusal of their 4 years ILR application.
Their immigration status should be restored by issuing an ILR. Also
those migrants and their dependants who left the UK due to the April
2006 ILR changes should be allowed to return back to the UK. The time
spent abroad by the migrants should also be acknowledged in these
issues.
9.
The pre 3rd April 2006 settlement
criteria that allowed 180 days of absence from the UK in 4 years should
be applied to pre 3rd April 2006 migrants. The qualifying criteria/requirements for ILR should be considered only
up to the date of completion of four years for those admitted before 3rd
April 2006.
10.
The facility to apply in person at Public Enquiry Offices for ILR should
be applicable for all those who joined HSMP scheme prior to 3rd
April 06 and pre November 06 without having to incur an extra ‘premium
service’ fee. As this will allow those who already suffered due to the
ILR changes to be able to obtain settlement at the earliest without the
need to wait further.
11.
The criteria for ILR application which was in
existence before 3rd April 2006 (and accordingly for those
admitted between 3rd April 2006 and as at 7th
November 2006) or when the migrants were admitted under the HSMP scheme
should be fully reinstated. No further or additional criteria should be
applied for settlement.
ILR should not be interchanged with Probationary Citizenship or any other
immigration changes in the future as it will not be in accordance with
the court order (1) and our JR judgment.
12.
There are some migrants (admitted pre 3rd
April 2006) who have paid overseas student fees to enrol in university
or college for themselves or their dependants due to the 5th
year. They should be given appropriate letters to inform the university
or college to rectify the overseas student fees and consider them on
local fees thereafter. Since most of the Universities are state owned it
should not be difficult for UKBA to rectify this issue.
13.
Those migrants who left UK after the November 2006 changes and returned
back and those subsequently returning to the UK as per the HSMP Forum
Limited policy document of 9th July 2008 should be issued
with a letter confirming the time spent abroad will be acknowledged for
their ILR. Though the policy document acknowledges the time spent abroad
will be carried forward for their ILR application but no such letter is
being issued on individual basis in this regard. We believe this can
have possible problem in future for the individuals concerned when
making an application for ILR.
14.
We believe apart from those admitted / approved
before 3rd April 2006 in the HSMP scheme, migrants who have
submitted their applications for HSMP approval before 3rd
April 2006 but received an approval letter after 3rd April
2006 should also be considered for ILR after 4 years because they
applied for HSMP based on the guidelines prevalent at the time.
Outside the scope of the Judgment
15.
This is of immense interest to those of our members who are on work
permits and ancestral visas that the Home Office’s stand in its earlier
communications to HSMP Forum and also during our Judicial Review
proceedings has been that the ILR 4 to 5 years April 2006 changes is
concerned with all immigration categories and not just HSMP. Though UKBA
is not obliged to make any changes for other categories in light of our
recent Judicial Review Judgment but we suggest keeping in view UKBA’s
own stand on this matter it would only be fair to apply the new policy
benefits to other skilled immigration categories as well namely work
permit and Ancestral Visa.
I also request you to write to me on the contents of
the policy document before it is published as it will give us sometime
to discuss and reason if any disagreements.
Yours Sincerely,
Amit Kapadia
Executive Director (Chairman)
HSMP Forum
www.hsmpforum.org /
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