On 20th May 2009 the UK Border Agency announced that it has now made arrangements to accommodate those individuals who were affected by the HSMP Forum (UK) Ltd judgement of 6th April 2009.
Background on the judgement
On 3rd April 2006 the residency qualifying period for indefinite leave to remain (ILR) in the UK increased from four years to five years. The change meant that any individuals who had been issued with an approval letter on the basis of an application made under the HSMP prior to 3rd April 2006 would now need to complete a period of five years’ continuous residence in the UK in order to be eligible to apply for ILR.
Consequently, many highly skilled migrants were obliged to apply for an additional extension of stay either under the HSMP or under Tier 1 (General) in order to meet the increased residency qualifying period. This was of course at additional expense to the migrant.
HSMP Forum (UK) Ltd, an organisation formed to support and assist skilled migrants currently in the UK sought judicial review of the Secretary of State’s decision on the basis that those individuals who had been issued with an approval letter on the basis of an application made under the HSMP prior to 3rd April 2006 should be eligible to apply for ILR after four years’ continuous residence. The judge found in favour of HSMP Forum Ltd.
Impact of the judgement
For those highly skilled migrants (HMSP or Tier 1 (General) who submitted an application under the HSMP prior to 3rd April 2006 and had their application granted, the judgement has the following effect:
- Applications for ILR can be made as soon as the individual has completed four years in the UK
- Migrants who have completed between four and five years in the UK can apply for ILR immediately and it will be assumed that ILR was granted after four years’ continuous residence for the purposes of applying for citizenship*
- Migrants who have completed five years in the UK and have been granted ILR on the basis of five years are eligible to apply to naturalise immediately
- Migrants who have applied for an extension of stay under the HSMP/Tier 1 (General) to take them from four to five years continuous residence may be eligible for a one-off payment to cover the costs of the second extension application. Migrants must apply for this payment before 20th May 2010.
*Currently ILR must be held for a minimum 12 months before a citizenship application can be made.
Those wishing to apply for ILR under the judgement will need to demonstrate that they have been able to maintain and accommodate themselves throughout the four year period without recourse to public funds. They must also demonstrate that they have been lawfully economically active in the UK in employment, self-employment or a combination of both.
If you believe the judgement applies to you and you need advice on submitting an application for ILR, please Marian Dixon or Peter Dixon who would be happy to assist you.
This article was first published in Business Immigration eBulletin June 2009
