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