HSMP Forum's email to UKBA on 26th April 2011

 

From: HSMP Forum
To: UKBA

Sent: Tue, April 26, 2011

Subject: Fw: Refunds - HSMP Forum ILR Judicial Review Implementation ! 

Kind Attn:

Thank you for your earlier letter dated 19th April 2011[1].

As you may be aware in the earlier communications from UKBA concerned with refunds for second further leave to remain extension for those who were eligible for ILR in 4 years (please find below an earlier email from UKBA), UKBA in refusing the refunds clearly acted wrongly. The July 2008 policy document (paragraph 9[2]) clearly shows that it was the UKBA which was to issue enough leave during the first extension for the individual to qualify for ILR after 4 years or 5 years. Therefore, it cannot be correct to refuse refunds for second HSMP FLR extension application[3] for not entering the UK within 28 days from the date of the entry clearance, as it was UKBA which acted wrongly in not issuing enough leave to remain during the first extension itself.  

All those who benefit under our judicial reviews, irrespective of when they entered the UK should be eligible for a refund provided they had to make a second extension application to qualify for ILR. We believe the UKBA acted unfairly and wrongly in denying the refund earlier to some of them for delaying their arrival to the UK for more than 28 days.

Since some of these individuals refund requests were refused earlier, we suggest that the UKBA writes back to them with refund cheques !

Yours Sincerely,

Amit Kapadia
Executive Director (Chairman)
HSMP Forum
www.hsmpforum.org


[1] http://www.hsmpforumltd.com/error_correction_ukba_letter.pdf

[2] http://www.ukba.homeoffice.gov.uk/sitecontent/documents/workingintheuk/hsmpjudicialreview

[3] Paragraph 9, 2009 HSMP Forum ILR JR Policy document http://www.ukba.homeoffice.gov.uk/sitecontent/documents/workingintheuk/hsmp-review-09-policy

 ----- Forwarded Message ----
From: UKBA

To: Amit Kapadia
Sent: Tue, July 21, 2009 
Subject: FW: Refunds - HSMP Forum (UK) Limited ILR Judicial Review Implementation !

Dear Mr Kapadia

Thank your for your email of 10 July regarding issues arising from the HSMP Indefinite Leave to Remain Judicial Review: Policy Document.

As you are aware the Immigration Rules for Highly Skilled Migrant Programme (HSMP) participants have always required them to have spent a continuous period lawfully in the United Kingdom in order to qualify for settlement.  Prior to 3 April 2006 this was for a period of four years. 

When applying for Entry Clearance, applicants are asked when they intend on travelling to the United Kingdom .  Where the applicant indicates that this will not be immediately the Entry Clearance Officer is able to post date the visa for a period of up to 3 months. This makes provision to allow for any notice periods or other arrangements to be completed without this effectively reducing the length of time which the applicant can spend in the United Kingdom under this visa.

Where an individual delayed their initial entry without specifying this on their original visa application they would always have been required to submit an additional extension application in order to reach the four year period required.  This is due to the fact that they would have been unable to complete the full one year for which the initial visa was valid and the maximum period of leave which could be granted at extension stage was three years, meaning that they would not been resident in the United Kingdom for the required four year period for settlement when their extension expired..

As such, where an applicant had not completed four years or was at the most within 28 days of doing so at the time that they made their second extension application, they do not qualify for this fee to be reimbursed as the application would have been required regardless of the Immigration Rules change of 3 April 2006. 

With regards to your final issue, applications submitted for settlement under the ‘HSMP ILR Judicial Review Policy Document’ are not being considered more harshly  than other immigration routes in terms of where they are submitted prior to the continuous residence requirement being completed.  There is nothing to prevent an individual submitting an application for settlement at any time, however they must be able to demonstrate that they can meet the requirements of the Immigration Rules or in these cases the ‘HSMP ILR Judicial Review Policy Document’.  In order to qualify for settlement under HSMP, an applicant is required to have already spent a continuous period of four/five years lawfully in the United Kingdom in the relevant immigration routes. 

The recommendation that applicants do not apply more than 28 days prior to the completion of this period is aimed more at deterring earlier applications rather than reducing the qualifying period by 28 days.  It also allows for the processing time for a postal application, as such it may be that it is not appropriate for these early applications to be accepted at a Public Enquiry Office as they may fall to be refused.   

Kind regards 

Gareth

NEYH Regional Operational Policy Team
UK Border Agency 


From: Amit Kapadia

Sent: 10 July 2009 10:14
To: UKBA

Subject: Refunds - HSMP Forum (UK) Limited ILR Judicial Review Implementation !

Kind Attn: Gareth Musgrave
 

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 2nd extension (1 + 3 + 3) to fulfill 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 2nd 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 2nd 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 20th 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 2nd 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.   

Yours Sincerely,

Amit Kapadia
Executive Director (Chairman)
HSMP Forum
www.hsmpforum.org

 

 
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