Contents of the UKBA’s letter dated 19^th May 2009 to HSMP Forum

Date – 19^th May 2009

To:

Amit Kapadia

Executive Director (Chairman)

HSMP Forum

From:

Jonathan Sedgwick                                                                           

Deputy Chief Executive, UKBA

Dear Mr Kapadia

Thank you for your correspondence dated 18 May 2009 in which you raise some specific issues in relation to the judicial review policy document that I recently shared with you.

I fully appreciate that with limited time to examine the document you have concerns about the detail of the policy and how that will be implemented. Below I have addressed each of your points in turn:

1.       We intend to follow our normal PEO and postal services to put these remedies into effect.  I believe that the remedies we are putting in place will support effective caseworking of all applications made under these remedies. I am pleased to tell you, however, that a team has been tasked to deal with all applications made under the remedies and we will be keeping track of the volumes of applications received and how quickly these are being processed.  And I will happily keep in touch with you if our processing of these cases causes you any particular concern. 

2.       The ‘knowledge of language and life in the UK’ will not be part of the ILR requirement for those applying to settle under the remedies. The revised SET(O) application form and guidance notes makes this clear and these will be available on the UK Border Agency website.  

3.       The judgment does not require that we expedite postal applications, however, I appreciate that those affected will want a speedy resolution to their application once the remedies are published. As I have already mentioned I have a team in place to process all applications made under the judgment and they will be doing everything possible to process applications as quickly as possible.

4.       The policy document makes the provision for a one off payment to cover the cost of the second FLR application which would not otherwise have been required. Where possible provision has been made for this to be done automatically, however, this is not possible for all groups affected as UKBA will not necessarily have up to date contact details for everyone.

5.       Relaxation of the guidance on permitted absences is not required by judgment and I would not want to take a blanket approach to this. However, we will look carefully at each case individually where it is critical to the outcome.  Again, I would be very happy to keep in close touch with you on this as we work through the cases. 

6.       All migrants under employment routes are subject to the economic activity test when they apply for ILR. Those affected by the judgment must meet this test regardless of when they apply. However, where a migrant is not economically active at the point they apply for ILR we will take into account further evidence if they can show they were economically active at the point they would have applied for ILR had they not been affected by the 3 April 2006 rules change. I believe this relaxation of the ILR requirements fully takes into account the intent of the judgment. 

7.       The policy document has been revised slightly and now takes account of the point you raised about discretionary leave by referring to ‘permission to stay’ instead of ‘FLR’. Anyone here without leave (overstayers) should have been able to use the remedies published in July 08 to regularise their positions. I therefore do not envisage any need to make provision under this second set of remedies for this group. The policy document issued in July 08 made it clear that migrants had to avail themselves of those remedies before being able to apply for ILR.

8.       Where dependants have had to pay for a second extension of leave that would not otherwise have been required they too will be eligible to receive a one-off payment to cover the fee paid for that second extension application.

9.       I would like to reiterate that whilst we have not yet made any final decisions about how our proposals under the Borders Citizenship and Immigration Bill will impact on people who are already in the immigration system, I would like to assure you that full consideration will be given to this and the previous ruling handed down in relation to the HSMP Forum Ltd judicial reviews. I will however, undertake to write to you separately in this matter once our thinking is developed in this area.

10.   We will issue a letter where applicable to deem ILR from the date the migrant would have reached four years to show that they were free from conditions at that point. 

11.   Clearly the judgment applies only to certain cohorts of migrants in the United Kingdom under the HSMP. At this time we do not have any plans to extend these remedies to any other groups. If you would like to write to me with further details on this point I would welcome that, but clearly that should not impact on the detail or timing of the remedies we put in place for those affected by the April 2009 judgment.

I hope this helps to address your concerns. The policy and the remedies will be published on the UK Border Agency website shortly. I am happy to look at any further issues which come to mind after you have had an opportunity to look at the guidance supporting the policy. 

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