HSMP judicial review arrangements put into action
20 July 2008
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Many highly skilled foreign workers are cheering a decision by a UK High Court which grants a reprieve to potentially thousands of HSMP visa holders who arrived in the UK before 2007 and then subsequently were required to leave because they failed to pass updated extension requirements. A recent judgment by the court found that the British government acted unlawfully by changing the rules for migrants wishing to extend their stay in the UK.
As a result, the UK Border Agency has implemented arrangements for people who entered the UK under the points-based Highly Skilled Migrant Programme (HSMP) and who are covered by the judgment following the judicial review brought by the HSMP Forum Ltd.
Judicial review proceedings were issued against the UK Border Agency after they changed the requirements for the HSMP in November of 2006 and then forced migrants to score against the new, stricter arrangements if they wished to remain in the UK on an HSMP visa. A UK High Court ruled that migrants had a "legitimate expectation" that they could extend their leave to remain in the UK under the same requirements under which they first applied.
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Only individuals and their dependants who were under the HSMP arrangements in place before the programme was suspended for a month on 07 November 2006 are covered by the judgment.
The UK Border Agency currently has arrangements in place for three different groups of skilled immigrants affected by the judicial review:
People who are currently living and working in the UK under an HSMP visa and have either applied for an extension of stay or will need to do so in the future
This group covers people who currently hold leave to remain in the United Kingdom and have either applied for an extension under the new Tier 1 (General) rules that have replaced the HSMP or expect to do so in the future.
Requirements for an extension of stay will be the same requirements that were in place before 07 November 2006.
People who were refused an extension to their stay in the UK as a highly skilled migrant and are in the process of making an appeal
Individuals in this group have been refused an extension of their leave to remain in the UK under the new rules put in place after 05 December 2006 and have a pending appeal or judicial review against this refusal.
The UK Border Agency will withdraw the decision that led to the appeal or judicial review claim and will reconsider cases that fall into this category under the HSMP rules in place before 07 November 2006.
People who were refused an extension to their HSMP visa and switched to a different immigration category
This group concerns people who were refused an extension to their HSMP visa and subsequently switched to another immigration category such as the UK Work Permit scheme.
Individuals in this category may ask the UK Border Agency to reconsider their original HSMP extension under the rules that were in place prior to 07 November 2006.
Settlement requirement remains at five years
The court's ruling concerning the right to seek an extension under the rules that were in place when they first applied for HSMP do not cover the changes to the number of years required to apply for permanent residence, otherwise known as indefinite leave to remain.
Since the 07 November 2006 changes to the HSMP, the number of years required to apply for indefinite leave to remain has changed from four to five years. Currently, the HSMP Forum Ltd. has a pending judicial review related to this change in the settlement requirement.