new light on WP ILR judgement

[star2]

There have been 3 cases unsuccessfully challenging HO's refusual to grant WP holders ILR on the grounds of new rules introduced in 2006 which changed the residence requirment from 4 years to 5 years.

One major point of law in the judgements is that, unlike HSMP holders who was promised in the HSMP Certificate with ILR after 4 years residence, there was no explict and unequivical promise to grant them ILR other than a extract from Immigration Act which contains general rule but non-spcific to the applcant.

Dispite whether the point of law is justified or not, this is only true for OUT-OF-COUNTRY WP applicant as there is only a WP Certificate for them. BUT NOTE(!!!):

For IN-COUNTRY WP applicants who were granted WP when they were resident in UK at the time of application, apart from the WP Certificate, there is a LETTER which CLEARLY states that they MAY APPLY ILR after 4 years of residence, exactly as what is stated in the Certificate for HSMP.

This fact was not recognised/discovered by the lawyers and courts in the above three cases. Indeed the plantiffs in those three cases may be all out-of-country applicants.

But for In-Country WP holders, they were given the same promise as were HSMP. Now HSMPs won the case, WP holders must now address this issue to HO!!!

[Narcissus]

Hi Star 2,

I have just checked my Partner's WP. He got it in July 2005 after a student visa so applied for it and got it in the UK. There is no mention of a 4 year promise though (although it was before the change to 5 years for ILR). Do you know when the HO stopped making the 4 year promise of ILR to in-country WP applicants? Or am I looking in the wrong place?

Is there anyone on the forums who does have such a guarantee wince they would probably be necessary for a successful JR.

[star2]

as i said there are two documents for in-country applicants: certificate and a letter.

the promise is made in the letter. it's worded exactly like HSMP.

[Narcissus]

Hi star2

You seem to be knowledgeable about these promises - do you work for the HO or are an immigration lawyer?

Anyway - neither of the two documents my partner received appear to mention any promise although he was an in-country applicant:

The initial work permit approval sent to employer (July 05) from Work Permits (UK):

Dear ***

APPLICATION FOR AN IMMIGRATION EMPLOYMENT DOCUMENT

APPLICATION BY: ***

Thank you for your application for an immigration employment document in relation to ***, who is currently in the United Kingdom.

We have approved this application against the work permit criteria for 60 months.

*** must now obtain leave to remain in order to take up this employment. This applies even if he has leave to remain for some other purpose or some other specified employment. This application can be made by completing form FLR (IED). This form is available from our Distribution Centre by telephoning 08705 210 224. Forms can also be downloaded from the Home Office website.: www.workingintheuk.gov.uk. Full details of how to pay the fee and where to apply are contained in the guidance notes that accompany the FLR (IED).

In some cases, applications may also be made in person at the Public Enquiry Office (PEO) in Croydon by appointment only. Full details of the service and the conditions when it may be used are available on the website or in the guidance notes which accompany the application form.

*** should make this application for leave to remain as soon as possible, and in all cases within six months from the date of this letter.

It is the responsibility of *** to complete the form and pay the appropriate fee. However, there is nothing preventing you paying the fee to cover the cost of the application and helping him complete the application form.

*** must not start work for you until leave to remain has been granted, unless he has current leave to enter/remain in a category under which he is allowed to take any employment in the United Kingdom. Work permit/immigration employment document decisions and decisions on leave to remain are made using different criteria. The granting of an immigration employment document does not mean that leave to remain will also be granted.

An employer commits and offence under section 8 of the Asylum and Immigration Act 1996 if they employ an individual, subject to immigration control, who does not have leave to enter or remain in the United Kingdom, or who has such leave but is subject to a condition prohibiting him from taking employment.

If you have any doubts as to whether a non-EEA national whom you wish to employ requires a work permit or already has permission to work in the United Kingdom, you can contact Work Permits (UK) on 0114 259 4074.

Should you wish to discuss any other aspect of this immigration employment document application please telephone the number at the top of the letter.

A copy of this letter should be given to ***.

Yours sincerely

***

The confirmation of LLR sent to my partner from the Home Office IND (Aug 05):

Dear ***

Thank you for your application to remain in the United Kingdom in line with an Immigration Employment Document (IED). I am pleased to tell you that your application has been approved and leave to remain has been granted. I am returning your passport, endorsed with an extension of stay in the United Kingdom. Please read the endorsement(s) carefully.

Permission is granted for the employment detailed below:

Employer: ***
Address: ***
Occupation: ***
Salary: ***
Length of Approval: ***

If you wish to remain in the UK as a holder of an Immigration Employment Document towards the end of your permitted stay, your employer should apply on the appropriate form. You will also need to apply for further leave to remain on form FLR (IED). These forms can be obtained from our website www.workingintheuk.gov.uk or by telephoning our distribution centre on 08705 210 224. If you require further information regarding this process please contact us on 0114 259 4074.

Alternatively, if you wish to apply for further leave to remain in another capacity, then you must do so on the appropriate application form. These forms can be obtained from the Application Forms Unit on telephone number 0870 241 0645. If you require further assistance regarding this please contact the Enquiry Line on 0870 606 7766.

Yours sincerely,

***
IN - COUNTRY6 WP(UK)
WPUK Managed Migration Directorate

Are we missing any documents? Should we have received anything else? Other than the visa in the passport this is all we have. Could the employer have something else?

Thanks!

[bani]

as i said there are two documents for in-country applicants: certificate and a letter.

the promise is made in the letter. it's worded exactly like HSMP.

It wasn't the wording of the HSMP approval letter that won the HSMP JR. It was two parts of the HSMP guidance notes:

9.1 c) That you (applicant) are willing and able to make the United Kingdom your main home. We will ask you to provide a written undertaking to that effect. You will be expected to make the UK your country of habitual residence.

24.10 Q: I have already applied successfully under HSMP. How does the revised HSMP affect me?
A: Not at all. It is important to note that once you have entered under the programme you are in a category that has an avenue to settlement. Those who have already entered under HSMP will be allowed to stay and apply for settlement after four years qualifying residence regardless of these revisions to HSMP.

That is what you should look for.

[lak3909]

Hi star2


Are we missing any documents? Should we have received anything else? Other than the visa in the passport this is all we have. Could the employer have something else?

Thanks!

I have just the same documents and i got my WP in Aug 2005... just as Narcissus mentioned i have jsut these two letters and nothing else...from HO.

[lak3909]

as i said there are two documents for in-country applicants: certificate and a letter.

the promise is made in the letter. it's worded exactly like HSMP.

It wasn't the wording of the HSMP approval letter that won the HSMP JR. It was two parts of the HSMP guidance notes:

9.1 c) That you (applicant) are willing and able to make the United Kingdom your main home. We will ask you to provide a written undertaking to that effect. You will be expected to make the UK your country of habitual residence.

24.10 Q: I have already applied successfully under HSMP. How does the revised HSMP affect me?
A: Not at all. It is important to note that once you have entered under the programme you are in a category that has an avenue to settlement. Those who have already entered under HSMP will be allowed to stay and apply for settlement after four years qualifying residence regardless of these revisions to HSMP.

That is what you should look for.

I have WP-guidance when i applied 2005 andnothing in that states this?
can you please guide where exactly are you abel to see this wording?

[bani]

as i said there are two documents for in-country applicants: certificate and a letter.

the promise is made in the letter. it's worded exactly like HSMP.

It wasn't the wording of the HSMP approval letter that won the HSMP JR. It was two parts of the HSMP guidance notes:

9.1 c) That you (applicant) are willing and able to make the United Kingdom your main home. We will ask you to provide a written undertaking to that effect. You will be expected to make the UK your country of habitual residence.

24.10 Q: I have already applied successfully under HSMP. How does the revised HSMP affect me?
A: Not at all. It is important to note that once you have entered under the programme you are in a category that has an avenue to settlement. Those who have already entered under HSMP will be allowed to stay and apply for settlement after four years qualifying residence regardless of these revisions to HSMP.

That is what you should look for.

I have WP-guidance when i applied 2005 andnothing in that states this?
can you please guide where exactly are you abel to see this wording?

We are talking about two different Guidance notes, please read my post carefully. I also wrote down the article numbers in the HSMP guidance notes, that's how you would find them exactly.

If you can't find similar statements in the WP guidance notes, then they're not there, and that is why the VBSI JR for WP holders (plus two other cases) lost.

If WP holders really want to pursue a new JR, you will have to rely on something in addition to those letters. They are not enough, sadly. I wish you all good luck.