UK HSMP Forum Judicial Review Judgement – Good News for HSMP Holders

On 20 May 2009 the UK Border Agency (UKBA) put in arrangements that will benefit many HSMP visa holders following the judgement of 6 April 2009 in the judicial review brought by HSMP Forum Ltd. This relates to the continuous residence requirements to gain indefinite leave to remain in the UK; also known as settlement or permanent residence.

If you came under HSMP you will benefit from this judgement in the following circumstances:

If you were sent a Highly Skilled Migrant Programme (HSMP) approval letter on the basis of an application made before 3 April 2006

and

You obtained entry clearance or permission to stay in the United Kingdom (also called 'leave to remain' or LtR) on the basis of that letter.

The following groups will benefit from the Judgement:

1. If you have already been granted indefinite leave to remain in the United Kingdom under the HSMP or Tier 1 (General) after completing five years continuous residence:

  • You were initially granted entry clearance or permission to stay in the United Kingdom for one year under the HSMP requirements.
  • You then applied to extend your stay by a further three years.
  • You then had to make a second extension application in order to complete five years' continuous residence in the United Kingdom.

Benefits following Judgement

One-off payment to cover the cost of the second extension application which would not otherwise have been required. You must apply for the payment before 20 May 2010.

You will also be considered to have obtained ILR from when they had first completed four years qualifying residence for the purposes of any subsequent citizenship application.


2. If you have completed four years' continuous residence in the United Kingdom:

  • You were initially granted entry clearance or permission to stay in the United Kingdom for one year under the HSMP requirements
  • You then successfully applied to extend your stay by a further three years
  • You then had to make a second extension application in order to complete five years' continuous residence in the United Kingdom. However, you have not yet completed the previous five year period required for settlement in this situation.

Benefits following Judgement:

You will be allowed to apply for ILR after you have completed four years qualifying residence.

You will be allowed to apply for a one-off payment to cover the cost of the second extension application which would not have otherwise been required.

If you make a successful ILR application you will also be considered to have first obtained ILR from when you had completed four years qualifying residence for the purposes of any subsequent citizenship application.


3. If you will soon have completed four years' continuous residence in the United Kingdom:

  • You were initially granted entry clearance or permission to stay in the United Kingdom under the HSMP requirements, for one year (if your application was approved before 3 April 2006)
  • or
  • Two years (if your application was made before 3 April 2006 but not approved until after that date)
  • and
  • You then successfully applied to extend your stay by either three or four years, but you do not as yet meet the previous five year residence requirements in this situation.

Benefits following Judgement:

You will be allowed to apply for ILR after you have completed four years qualifying residence.


4. You applied for settlement after four years and had their application refused:

  • If your application for settlement was refused purely because you had not completed five years continuous residence in the United Kingdom
  • and
  • You won an appeal against the refusal decision and were later granted permission to stay
  • or
  • You did not appeal the refusal decision; or you appealed the refusal decision but your appeal was dismissed.

Benefits following Judgement:

You will be entitled to apply for your original ILR application to be reviewed.

If your ILR application is successful your leave will be varied to ILR under HSMP.

If you are successful in your ILR application you will also be considered to have first obtained ILR from when you had completed four years qualifying residence for the purposes of any subsequent citizenship application.


5. If you have completed four years' continuous residence in the United Kingdom and have applied to extend your stay

  • You were initially granted entry clearance or permission to stay in the United Kingdom for one year under the HSMP requirements.
  • You then successfully applied to extend your stay by a further three years;
  • You have now applied for a second extension in order to complete five years' continuous residence in the United Kingdom.

Benefits following Judgement

You will be invited to vary your application to an ILR application.