HUGE problem -- please help!

[rella]

I posted a few days ago on this forum and also on the general immigration board about our particular situation. I got some feedback on the main board, but I think I should post here for specific help, as we just got awful news.

My husband just had an in-country HSMP approved, filed last April. However, the immigration rules changed since he originally submitted the HSMP for visa-switching. This will pertain to anyone who submitted an HSMP in-country prior to 1 October who is not here on either WP, WHM, doctor or dentist or approved sci and eng programmes. Before 1 Oct, anyone legally on a visa, other than visitor, could switch to HSMP.

My DH has a student visa and is not completing his progamme. We called HSMP and spoke with them, as well as Croyden and were told that he would be able to switch visas. Then, the rules changed before they could get his HSMP app processed.

Hubby emailed the FLR(IED) in-country team who does HSMP. They said he would not be able to get an FLR(IED) and get this -- that his HSMP approval is invalid and that he was to reapply all over again from our home country! So, this HSMP that we waited 7 months for is not valid? Does anyone have a clue what we can do?

[hk_007]

Since there is no distinction between in and out-country applicants, I don't see why the HSMP approval per se is invalid. Worst case, if the HO is not willing to consider in-country switching as a special case, you should be able to apply for EC from your home country.

[Chess]

Your case should be treated under the old rules.

Apply for FLR - IED as normal. If they refuse it then go for appeal.

Simplest option would be to fly out and apply for EC from the States.

Obviously you will have to be 'economical' with the truth lest the British Embassy guyz may refuse EC.

Best form of action is to 'FIGHT' in-counytry

BTW - Rella - what is your status - presumably depedant?

[rella]

Your case should be treated under the old rules.

Apply for FLR - IED as normal. If they refuse it then go for appeal.

Simplest option would be to fly out and apply for EC from the States.

Obviously you will have to be 'economical' with the truth lest the British Embassy guyz may refuse EC.

Best form of action is to 'FIGHT' in-counytry

BTW - Rella - what is your status - presumably depedant?

Yep -- I'm dependent. I didn't apply for my own HSMP, because I haven't been working since my son was born 4.5 years ago. So, no earning points or enough full-time work experience. I spent 12 years in uni, so pretty light on work experience outside of school/research-related stuff.

Thanks, Checkmate. My husband feels the same way -- we stay, apply, wait for decision and then appeal. The guy who answered the email may not even be right about policy. Who knows?

I think we'd have a whole lot of explaining about why we're trying to get EC and why we weren't granted FLR that could get problematic -- so best to try to do it here.

Thanks for your help and advice. After we hear back about the FLR, I will likely be bugging you guys again for input about how to proceed next.

[MWazir]

Rella,

I can understand someone from the HO saying that you cannot apply for FLR(IED) now that the rules for switching have been amended. But to say that your HSMP approval is invalidated is gobsmacking to say the least. Did they give any reason for it?

Have a look at the switching leaflet published at their website

http://www.workingintheuk.gov.uk/workin ... ing__.html

I qoute from the leaflet

Switching from categories other than those stated in this leaflet will not be allowed except in exceptional circumstances. These circumstances will be assessed by caseworkers on a case by case discretionary basis. Circumstances relating to the job, employment and labour market will not be accepted as exceptional circumstances. Only circumstances relating to the individual which would make it unduly harsh for them to return to their country of residence may be considered as exceptional.

You should stress that your application for HSMP was made well before the in-country switching rules were amended and that infact it was taken half a year is not your fault.

[rella]

Rella,

I can understand someone from the HO saying that you cannot apply for FLR(IED) now that the rules for switching have been amended. But to say that your HSMP approval is invalidated is gobsmacking to say the least. Did they give any reason for it?

Nope. Here is the email in its entirety:

Dear sir,
Thankyou for your email. With regards to the change in Switching rules for
HSMP from the 1st Oct 2004. A student can only switch in country to HSMP,
who have successfully graduated from the course they are here in the UK on.
In your situation the FLR(ied) would fall for refusal under the new
immigaration rules. The other option to your situation is to return to your
home country and make a fresh Out of Country HSMP application, inc. a
covering letter explaining why you have made this second application and the
fact it has already been approved once, and then this may speed up your
second HSMP application.
For more information about Out of Country HSMP please call 0114 259 1894
Regards Ops 2

Have a look at the switching leaflet published at their website

http://www.workingintheuk.gov.uk/workin ... ing__.html

I qoute from the leaflet

Switching from categories other than those stated in this leaflet will not be allowed except in exceptional circumstances. These circumstances will be assessed by caseworkers on a case by case discretionary basis. Circumstances relating to the job, employment and labour market will not be accepted as exceptional circumstances. Only circumstances relating to the individual which would make it unduly harsh for them to return to their country of residence may be considered as exceptional.

You should stress that your application for HSMP was made well before the in-country switching rules were amended and that infact it was taken half a year is not your fault.

I agree, but I doubt that they will consider that exceptional circumstances. But, we have no choice but to submit the FLR and forge ahead.

Does anyone know what the procedure and time frame is for an appeal of an FLR(IED)? Can we keep applealing up the ladder if the first appeal is rejected?

I think we have a pretty good case, for these reasons -- they changed the rules for submitting FLR and HSMP together just days after we submitted the HSMP. I had no idea until I came on this forum, that they had done this, because I had downloaded the old forms off their site just a few days prior to 1 April, and I didn't see any warning of the impending change...

At the time the HSMP was submitted, they were taking about 2 months to process. So, it should've been processed according to their own estimates, before the announcement came about the new FLR rule changes. It drug out for 7 months -- and during that time, there was nothing we could do to speed it up. I watched October looming up and knew we'd likely be screwed if they didn't get the HSMP decision back in time to submit the FLR before Oct 1.

So, if we approach it the right way -- being persistent, but polite and respectful, maybe we can get it through.. I have no idea if there's a chance.

Oh.. it states on the HSMP approval letter that hubby is to submit FLR(IED). I would assume that out-of-country approvals state how to go about EC. I don't know if the consulate would give us a hard time about having the wrong approval, if we just explain how we got caught up in long processing times and rule changes in the interim.

It may well be that if we just can't get the FLR, that HSMP may be willing to draft a new approval letter for EC. But, it may not be that easy and they may require an entirely new application...

I'm trying to stay calm, but it's very hard not to worry and get anxious.

[ameba]

Hi rella,

Can you clarify please - did you husband applied for FLR(IED) before 1 Oct 2004 or after?

If it is even a day after 1 of October, he unfortunately falls for refusal. Of course, to say he needs to reapply the HSMP application is nonsense.

I do not know who is in power and changes the rules all the time, but they literally play with peoples lifes...

[rella]

Hi rella,

Can you clarify please - did you husband applied for FLR(IED) before 1 Oct 2004 or after?

If it is even a day after 1 of October, he unfortunately falls for refusal. Of course, to say he needs to reapply the HSMP application is nonsense.

I do not know who is in power and changes the rules all the time, but they literally play with peoples lifes...

He didn't get the approval letter until last week -- so, well after 1 October. He applied for HSMP in April, so the rule changes were 6 months after... We had no way of knowing that they'd make another rule change at the time he submitted his HSMP application. I think the immigration scandal has caused them to tighten up a ton of rules.

I may call and talk to the guy who answers phones at HSMP today. He thought that the FLR team would let my husband apply under the old rules, since this was all out of our control and we did everything we could to make sure he was doing things according the rules. I'd like to see what HSMP's advice is.

The only plan we can come up with now is to go ahead and apply for the FLR, as the HSMP approval letter instructed. And then if it's refused, appeal under the grounds that we should be considered under the rules that were in effect at the time. It's not like we rushed an HSMP application in on 30th of September and then tried to argue that the old FLR rules should apply. It was all done in good faith and above board. I don't know if that counts for anything, but we have to try.

[ameba]

You are brave! I like you guys! If you want to organise a petition or other protest against HO, I am in!

It is all so stupid.
According to these new "rules" I have to go back to my country and pass the EC. I guess the interview with the immigration officer would be something like:
- Have you ever been to UK before?
- Oh, C'mon man, I just arrived from there, my wife and kids live in UK, my car is in the UK, my UK employer is waiting for me to come back to work. Just stamp your stupid visa and let me go!

I am getting very angry...

[rella]

You are brave! I like you guys! If you want to organise a petition or other protest against HO, I am in!

Well... thanks... but we won't be arranging any protests or petitions! We will be on very best behavior, being as nice and respectful as humanly possible.

It is all so stupid.
According to these new "rules" I have to go back to my country and pass the EC. I guess the interview with the immigration officer would be something like:
- Have you ever been to UK before?
- Oh, C'mon man, I just arrived from there, my wife and kids live in UK, my car is in the UK, my UK employer is waiting for me to come back to work. Just stamp your stupid visa and let me go!

I am getting very angry...

Yeah... we're in the same boat. Have new car, had to move -- since leaase expired while waiting for HSMP decision -- moved to house where we had to buy all UK applicances -- we've spent a fortune living here. So, I hope if we have to do EC, we'll have a good-natured officer who will see that we just got caught in the middle terribly long waiting periods for processing and rule changes.

If you go back to home country for EC, won't your wife and kids have to go too? Are they the same nationality as you? Or can you take their passports and have them stamped while they stay here?

Get the anger and frustation out of your system here, so you can be completely calm and happy with the entire process when you do EC! Keep repeating, "I love gov't red tape... I love gov't red tape.."

[Kayalami]

Rella,

1. When (date, month, year) did your husband apply for the HSMP?

2. When (date, month, year) did the HSMP Team receive the application?

3. What is the date on the HSMP approval letter?

[rella]

Rella,

1. When (date, month, year) did your husband apply for the HSMP?

He sent the application on April 19, 2004.

2. When (date, month, year) did the HSMP Team receive the application?

The team received the application the following day, on April 20, 2004.

3. What is the date on the HSMP approval letter?

I don't remember the exact date on the letter, but it's mid-November -- approximately 11 November, 2004.

I saw a couple of threads on another HSMP board that I rarely check with a guy in a very similar situation to my hubby's. He was turned down for the FLR(IED). I thought you might find in interesting in how the FLR team quoted and applied the rules.

Here are the links to his story:

http://www.hsmp-services.co.uk/phpBB/vi ... php?t=1333
http://www.hsmp-services.co.uk/phpBB/vi ... php?t=1347

Thanks.

[kumar78]

Hi Rella & Moderators,

Your case has also put me in doubts. My situation is bit different. I went to UK last year on student visa and came back to my home country after freezing my course due to family reasons. I still have the one year valid visa left. Meanwhile I applied for HSMP as out of country applicant as I didn’t want HO to hold my passport and this was also advised from Home Office that I don’t file FLR in my case now and wait for HSMP approval.

Now my question is that as I have still one year valid student visa left if I get the positive HSMP response from HO would there be any problem in EC?
I think I would have to apply for HSMP EC from my local embassy in this case, am I right?

Moderators and senior members please clarify based on your experiences.

Thanks a lot

[rella]

Kumar,

As I understand the rules, your student visa was no longer valid after you left your programme. Therefore, even if your visa stamp shows one more year, it is not a valid visa any longer.

Therefore, you did the right thing, applying for HSMP from your home country and going for EC once you have HSMP approval.

I would also assume (I'm no expert here, so need the input of others), that you can apply for a new visa while a prior one is in force. People apply for HSMP all the time while still having time left on a valid WP with no problem. In that case, don't you have to get a new FLR(IED) to go with new HMSP status?

Good luck to you.

[kumar78]

Rella you are right about people with WP and applying FLR after getting their HSMP. It is obvious for WP guys apply for FLR after HSMP while staying in UK as they are doing jobs in UK. I wish same rule could have applied to students like your hubby as well but now they are treating WP holders and student’s visa holders separately. This is really discouraging that after successful approval you are facing such issues as you are pre October applicants. You should be able to get passport stamped either by FLR or EC but surely by any one of the route you should be able to get your passport stamped.


Moderators /Members please share your experiences about our cases..

[Kayalami]

Rella,

1. Your husband's HSMP falls for consideration under the 'from 1 April 2004 rulings' i.e. its submission is not a dual application for acceptance on the HSMP scheme and for HSMP FLR.

2. Hence Form FLR (IED) must be submitted with the HSMP approval letter for the grant of the initial 12 months HSMP FLR.

3. Form FLR (IED) will be considered under the post 1 October 2004 rules on switching - it will fall for refusal as it is not in accordance with the immigration rules since your husband has not graduated from a relevant UK institution. A refusal on this basis is not appealable and even if it was would be a waste of time because the appellate authorities would throw it out. Further your HSMP approval letter would probably expire before the appeal was listed for hearing, you would be living with constant stress pending the outcomes and would be needlessly delaying your ILR counter by getting onto HSMP status as soon as possible. Not to mention that the Home Office could dig into your immigration files and establish the withdrawal from university.

4. You can include reasons why you believe your application in 3 should be considered outside the rules. Without consulting you on all the details pertaining to the application and your personal circumstances in the UK, I am not able to note any reasons from your posts to date as to why discretion should be exercised. Discretion on the grounds of processing times is IMHO irrelevant/ unlikely given that the Home Office consistently publishes data stating it is unable to meet previously stated standards for the HSMP scheme and warning applicants to the same effect.

5. Technically speaking you are not overstayers given your visas expire in 2006 - however you are in breach of conditions attached to your leave to enter given your spouse is no longer a student. The HO is unlikely to bother much with this (they have bigger fish to fry) unless it comes to their attention e.g. the university reports this or you apply for FLR as a student and your previous record of study is required.

My advice is:

6. The HSMP Team issue two types of approval letter - both are of similar stature given the scoring matrix is standard except that one is endorsed (in relevant paragraph) for FLR the other for EC.

7. Your spouse should request the HSMP Team to issue him an HSMP approval letter for EC purposes on the basis that the in country application times for FLR are excessive and he wishes to attain HSMP status faster via the EC process.

8. You should then proceed to the US (the whole family) and apply for HSMP and HSMP dependent visas via the relevant British Consulate on form VAF1. With appropriate planning you should get everything done in less than 2 weeks. If it helps the strength of sterling vis a vis the greenbuck has made transatlantic flights an even better deal than before.

9. Issues around the student status etc in 5 are then moot given the HSMP is a category leading to settlement. For proof of funds in the EC application you can submit bank statements - no need for employers letter.

I am sorry that this may not be the news you wanted to hear. Likewise note that it is only my opinion based on my knowledge and interpretation of immigration laws and practice. You may wish to seek further advice from an appropriate immigration specialist.

Good Luck

[Kayalami]

Kumar,

Your situation mirrors that of rella with one further complication - you have left the UK since you have 'frozen' your studies - what do you mean by this? Are you still enrolled at the college or have you quit the course? If its the latter then your visa is no good - re-entry into the UK on it would be a breach of the immigration rules on grounds of misrepresentation.

In any case you are ineligible for FLR since:

1. You are yet to graduate from a relevant UK institution.

2. You are an out of country applicant.

Apply for HSMP EC with the relevant HSMP approval letter - use form VAF1 available at the relevant British Diplomatic Post in your home country. I presume the HSMP Team have your relevant contacts/ addess there?

[kumar78]

Dear Kayalami,

I thank you for your reply, please find additional details next to your question. Just to clear your the background. When just I came to my home country I then decided to apply for HSMP first month since I came back. I wrote email to HSMP team asking them that I want to apply for HSMP and I hold a student visa and at the moment I am not in UK so what should I do? then advised me that I should only file simple HSMP application without submitting my passport for FLR and wait for its (HSMP) outcome. Then I go for FLR (till them FLR 1st Oct rules was no where in the picture).

Kumar,

Your situation mirrors that of rella with one further complication - you have left the UK since you have 'frozen' your studies - what do you mean by this? Are you still enrolled at the college or have you quit the course? If its the latter then your visa is no good - re-entry into the UK on it would be a breach of the immigration rules on grounds of misrepresentation.

It is only a letter stating that I am enrolled as a student and leaving to my home country due to some family situation.

Apply for HSMP EC with the relevant HSMP approval letter - use form VAF1 available at the relevant British Diplomatic Post in your home country. I presume the HSMP Team have your relevant contacts/ address there?

Yes as advised by HSMP team I just mentioned my home country postal addresses only.


Here was the contents of my email

I have one query, I want to file the HSMP under 28, at the moment I am in my home country from where I will dispatch the papers to home office in couple of days. Do I need to fill out the form FLR (IED) as well if I am not present in UK and filling the case from my home country while I have the uk student visa status with me.

Response from HSMP Team

If you are currently living outside the UK.
Once the HSMP team receive and consider your completed application they will notify you of the decision in writing. If successful you can then apply for entry clearance at your nearest British Mission (entry clearance issuing post) in your current place of residence.

If you are already resident in side the United Kingdom.
On acknowledgement of a successful HSMP application submit the following:-
* a fully completed FLR (IED) form which you can download from the IND
website or can obtain by calling the applications form line on 0870 5210
224.
* two passport sized photographs
* your passport and those of any dependants accompanying you
* the correct payment (the charge for consideration of FLR is £121,
regardless of outcome.)

In either case, it is wise to be in receipt of a succesful HSMP application
before proceeding any further.

I hope this is helpful.

Kayalami, do you think can I face problem in getting EC?

[rella]

Many, many thanks, Kayalami. It doesn't matter what I want to hear. It matters what the best route is for living in the UK. Everything you say makes sense.

My biggest fear is leaving here -- with everything on the planet we own here -- and not being able to get back in. So, we will prepare carefully for the interview.

I will be bugging everyone with many questions about EC, I'm sure.

You have all saved us more than once, so thanks for all the assistance. I will let you all know how it goes and hopefully, we'll be back here in a few weeks with EC granted and be on our way to getting permanently settled.