To UKBA,

This is in reference to some issues being faced by some of those who benefit under the HSMP Forum Judicial Reviews (April 2008 & April 2009). It has come to our attention recently that a number of migrants who received extensions under these Judicial Reviews, received only three years’ leave, which in their case was not long enough to complete their five years’ qualifying period for settlement. This goes against paragraph 9 of the published Policy Document for the April 2008 Judicial Review judgment, which is as follows;

If an applicant meets these requirements we will grant them:

a. Three years’ leave; or

b. Enough leave to enable the applicant to complete the qualifying period for settlement,

whichever is the greater.

Although in some cases UKBA has issued extensions of up to 3 years 4 months for some migrants to reach their settlement, but this was not practiced consistently and other migrants were issued a 3 years extension only even though they required few days or months more than 3 years to finish their qualifying period for settlement. In addition, some of the letters of extension contained the following paragraph;

‘Your application has now been considered under that criteria and leave has been approved for a period of (time) until (date). This will be sufficient to take you to the current qualifying threshold for settlement.’

We estimate the affected group to be of a small number of migrants plus their dependents who mostly may have entered UK between April and November 2006. This group is limited to migrants who made ‘out of country’ HSMP applications and arrived in the UK after 28 days of being issued their HSMP entry clearance stamp. As you can appreciate, the process of leaving jobs and homes and preparing a family to leave for the UK can take more than 28 days. The guidance itself did not inform the migrant that they had to enter the UK within 28 days or / and that they would have to make a further extension application if they delayed their entry beyond 28 days. This is the reason many migrants only entered the UK between 1 and 4 months after receiving their HSMP entry clearance.

These migrants are / will be forced to apply for a second HSMP extension, which they need for a very short duration (from a few days and up to 4 months) to qualify for settlement. We find this unfair since HSMP extension fees have been significantly increased since 2008 and dependents are now charged separately. It is a significant financial burden that would have been avoided had UKBA followed the Judicial Review Policy Document / judgment. The court order in 2009 stated as follows; “(1) In respect of all persons admitted to the Highly Skilled Migrant Programme as at 7 November 2006, those individuals are entitled to the benefits of the scheme (including settlement) according to the terms (including as to qualifying period) which applied on the date when they joined.” The benefits of the scheme prior to 7th November 2006 included the main applicant (migrant) able to include any number of dependents without paying any additional application fees.

For the above reasons, we propose that migrants who made a first HSMP extension under the Judicial Review of April 2008, be exempted from paying further fees if they need to apply for a second HSMP extension. Alternatively, we suggest that these migrants be allowed to apply for Indefinite Leave to Remain early i.e. before the expiry of their HSMP leave to remain to avoid a second HSMP extension.

I look forward to your response.

Yours Sincerely,

Amit Kapadia
Executive Director (Chairman)
HSMP Forum