FLR(HSMP)Rejected

[time789]

Hi,

I recently got my HSMP approval letter and applied for an FLR to make a in country switch but it was rejected.

The reasons quoted in the letter were :

"Please note that although you have degree which was gained in 2002 you have left the country and gained entry clearance in 2006 therefore we can't take into consideration your degree from 2002."

It was also indicated in the letter that I have no right to appeal.

Just a brief description on my background:

I initially entered the U.K in 2001 and finished my Master's degree by end of 2002 and left the country in early 2003 to pick up employment in my home country.I returned back in 2006 to pursue a research program in 2006 which I am still pursuing at this point.

In the FLR guidance notes it does not state that you cannot switch immigration status if you had completed your Master's during your earlier stay,all it states is you would be eligible to make an in country switch if you have completed your Master's from a reputed institute which keeps satisfactory records of attendance and so on .

Please do let me know what I should do as far as further action goes.

[gordon]

Do not the regs stipulate that the degree qualification should have been achieved in the current period of leave (from which you are applying to switch) ?

[time789]

All the guidance notes states is that

"A student who has successfully obtained a degree qualification on a recognized degree course at either a United Kingdom publicly funded further or higher education Institution or a bona fide United Kingdom private education institution which maintains satisfactory records of enrolment and attendance"

It did not stay anything related to the degree being attained in the current stay or previous stay.

Would appreciate your advise as to the further course of action

[gordon]

How strange: the initial application guidance notes indicate the following, while the IDIs and FLR(HSMP) guidance notes indicate as you've done above. I'm not sure what the discrepancy would mean for you going forward, but I gather that the below is the standard to which you were possibly being held.

80. You may make a HSMP application whilst in the United Kingdom if you are currently here under one of the following categories: [...]
- Students who have obtained a degree qualification during their current period of leave in the UK on a recognised degree course at either a United Kingdom publicly funded further or higher education institution or a bona fide United Kingdom private education institution which maintains satisfactory records of enrolment and attendance

(HSMP guidance notes, pp 11-12)

[kck9]

Sorry that you didnt get through the final step........

As far as I understand, if you are a student currently pursuing some research program, I think you have to finish the current commitment before applying for some leave to remain with wok status. I may be wrong.......

hope this helps.

[time789]

Thanks for the replies

Does this mean

1. Because the guidelines for the FLR(HSMP) are ambiguous I can request for a re-consideration.

2.As far as the other suggestion goes about completing my research program I cant complete it before Aug 2008 by which time my HSMP approval validity expires.

3. Would be correct on my part to presume that if I go back to my home country (again the guidance documents states abroad not home country) and apply for my switch .The reason why I ask this question is

I have been told the HSMP approval letter can be used only once .

If I do go back to my home country and presuming my application is rejected where do I stand as far as my student Visa goes.

Thanks in advance

[time789]

80. You may make a HSMP application whilst in the United Kingdom if you are currently here under one of the following categories: [...]
- Students who have obtained a degree qualification during their current period of leave in the UK on a recognised degree course at either a United Kingdom publicly funded further or higher education institution or a bona fide United Kingdom private education institution which maintains satisfactory records of enrolment and attendance

Gordon: Thanks for that link but then again
If the above scenario was applied that would have meant that my application should have been rejected during the approval stage itself .

Thanks

[time789]

These were the reasons I was given for my application to be refused

[b]VARIATION OF LEAVE OR REFUSAL TO VARY LEAVE[/b]

Paragraph 135F with reference to 135 DB(ii) of HC395 of HC 395
(as amended)

In view of the fact you have not passed a degree or above in the last period of leave the Secretary of State is not satisfied that you have obtained a degree qualification on a recoginsed degree course at a UK publicly funded further or higher education institution or a bonafide UK private education institution which maintains satisfactory records of enrolment and attendance.
------------------------------------------------------------------------------
You are not entitled to appeal this decision.Section 82 of the Nationality Immigration and Asylum act 2002 does not provide a right of appeal where an applicant still has leave to enter or remain in the United Kingdom so is entitled to stay here.

----------------------------------------------------------------------------------

This is what is defined in the paragraphs of Immigration act 1971 they are referring to

135DB The requirements for an extension of stay as a highly skilled migrant for a student are that the applicant:

(i) entered the United Kingdom or was given leave to remain as a student in accordance with paragraphs 57 to 62 of these Rules; and
[b]
(ii) has obtained a degree qualification on a recognised degree course at either a United Kingdom publicly funded further or higher education institution or a bona fide United Kingdom private education institution which maintains satisfactory records of enrolment and attendance; and[/b]

(iii) has the written consent of his official sponsor to remain as a highly skilled migrant if he is a member of a government or international scholarship agency sponsorship and that sponsorship is either ongoing or has recently come to an end at the time of the requested extension; and

(iv) meets the requirements of paragraph 135A(i)-(iii).


Refusal of extension of stay as a highly skilled migrant

135F. An extension of stay as a highly skilled migrant is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 135D, 135DA, 135DB, 135DC, 135DD, 135DE, 135DF or 135DH is met or if the application falls for refusal under paragraph 135HA.


Nowhere does it stay in the second para based on which my application was refused does it indicate that the Degree should be acquired during the current period of leave.

I hope somebody on the forum would be kind enough to advice me on what further course of action I can take as far as my application is concerned.

Thanks a lot in advance

[gordon]

Para 80 was actually drawn from the sub-section on EC and FLR (stage 2) for those applying under the HSMP framework. That's why I cited it. There appear to be no such restrictions on people making an initial application (stage 1).
AG

[time789]

Appreciate your response.

So what do you reckon my further course of action should be

1.Should I re apply making sure that the case worker's attention is drawn to this fact

2.Or Should I make an application through a solicitor so that it is hassle free process for me if so do you have any recommendations.

3.Also you did indicate that the process based on which my initial application for varying leave was rejected refers to phase 2 of the process . Does it mean that I will be facing the same issue all over again 2 years down the line.

Once again appreciate the time taken to respond back to me.

[gordon]

My thoughts, for what they're worth (because I'm not an immigration specialist), on your options:

1. If you reapply for FLR(HSMP) : I don't know how successful this would be, even if you were to underscore your interpretation of the regs. The verbiage 'entered the UK [as a student] ... and has obtained a degree ...' seems straightforward to me as requiring you to have completed the degree in the period of leave from which you're applying to switch. But maybe caseworkers have some discretion on this point, and you got a caseworker who was feeling slightly ungenerous ? I really don't know; but the guidance notes and their refusal suggest not.

2. Having already been refused, going though a solicitor or an immigration specialist (like Victoria on this board) might help you to articulate more convincingly such an argument in (1), or otherwise give you some sense as to the prospects of its success. It might be worthwhile to approach the international office at your university as well; perhaps they might be able to provide feedback based on their experience.

3. After you get your initial two-year leave on HSMP, you're not going to run into this problem again. When you go for the extension in two years' time, you would at that point be extending your extant HSMP leave, not varying (or obtaining) leave.

If you're not successful at this juncture, then I wonder what your options would be. Going home to obtain entry clearance ? Waiting until you finish your degree, and then applying for FLR ? If you do the former, I cannot imagine that your student leave would be curtailed unless there were good cause (and the caseworkers would likely have already identified such a problem if it had come up in the FLR application anyhow), and thus your student leave would only be terminated on the issuance of the HSMP EC.

[VictoriaS]

Do not the regs stipulate that the degree qualification should have been achieved in the current period of leave (from which you are applying to switch) ?

yes, they do.

Best thing is to go home and apply for entry clearance.


Victoria

[stmartins1]

hi..
i had the same problem with my hsmp application. what did you do. Can you plz advise me if i apply through a solicitor will they approve the application.
thanking you
martin

[stmartins1]

hi.
time789 did you reapply through a solicitor. please reply with your advice.
regards
martin