ILR after 4 years on HSMP

Smit · Post by **Smit** » Wed Feb 15, 2006 4:02 pm

The HSMP Scheme was originally introduced in Januray 2002. Seeing that we are over 4 years into the scheme, are there any people who have obtained ILR on the basis of having completed 4 years in the UK solely on HSMP visas?

Please share your experience with us. I presume there will be quite a number of such people in the coming months.

Smit

Kayalami · Post by **Kayalami** » Fri Feb 17, 2006 12:28 am

I've got a case coming up in early March so will feedback to the bb then.

Chess · Post by **Chess** » Fri Feb 17, 2006 9:37 am

Kayalami wrote:I've got a case coming up in early March so will feedback to the bb then.

Kaya - are you now handling cases?

noddy214 · Post by **noddy214** » Tue Feb 28, 2006 11:08 am

Hi There!!!

Although I am not due for ILR till 2008, I had an interesting chat with the HSMP Customer Service when I was applying for my FLR.

To give you a brief background on my case, my HSMP stamp was dated 25 November 2004. I landed in UK on 6 January 2005. My one year visa was due to expire on 24 November 2005. Applied for FLR in 6 October 2005 and got additional three years visa valid till 24 November 2008.

At the time of applying for FLR I had called up the HSMP Cusotmer Service team and got to understand that to apply for ILR, one should have completed 4 years from the date of entry, which in my case would be 5 January 2009 but my FLR visa will be valid till 24 November 2008 only.

My question to the forum is what happens to the applicants in the interim.

When I asked this question the HSMP Customer Service lady, she told me well it is a bit of a loop hole and they did not have an answer as the first applicant due for ILR will be in April 2006. She suggested I should not wory about it as by the time it is my turn there will be lots of candidates who would have a similar situation.

Would appreciate any suggestions or feedback on this topic.

Thanks,
Noddy.

Chess · Post by **Chess** » Tue Feb 28, 2006 2:11 pm

You would get an extension to your HSMP (for say 1 year) till you meet the 4 year stay..

kitkatgirl · Post by **kitkatgirl** » Tue Feb 28, 2006 8:52 pm

"the first applicant due for ILR will be in April 2006. She suggested I should not wory about it as by the time it is my turn there will be lots of candidates who would have a similar situation. "

Well...this is wrong. I received my HSMP on 12 March 2002 and will expire 12 March 2006. I entered the country on 9 June 2002, so I'm stuck with a 3 month gap.

It's only after I've completed the application for ILR, and made the appointment that it occured to me this might pose a problem...

But, when I spoke with the ILR people I was told to ask the HSMP people, who referred me back to ILR (wonderful!) No one had a definitive answer, only opinions. The opinion I'm following is to apply for a Limited leave to remain extension to the existing HSMP visa using form FLR(IED). Then in 3 months time, apply for the ILR.

This will cost me additional £350 for "a bit of a loop hole". Quite frustrating. If anyone has any other "opinions" or is experiencing a similar situation, please share as I wouold love to not spend £350 on this if it's not neccessary!

...and I must remember to cancel that ILR appointment...

thanks
Kathleen

olisun · Post by **olisun** » Wed Mar 01, 2006 9:57 am

now the question is, is ILR more important or £350) .....

kitkatgirl · Post by **kitkatgirl** » Wed Mar 01, 2006 10:24 am

Fair point - ILR obvioulsy!

Was just sounding off yesterday...apologies to all. This is a great site and has been most helpful..thanks to everyone

noddy214 · Post by **noddy214** » Fri Mar 17, 2006 2:45 pm

Hey Kitkatgirl,

From your previous post, I understand you would have already sent your passport to HSMP team and got it back. Just wondering if the HSMP guys came up with any solution or did they make you extend your FLR and go for your ILR when you complete 4 years from your date of entry.

Would be nice if you could keep the rest of us posted.

Thanks,
Noddy.

Post by **John** » Fri Mar 17, 2006 2:56 pm

kitkatgirl, I bet you are feeling totally "cheesed off" by the fact that you will not be able to get your ILR this year, but instead will need to wait for a further year ... and do you need to apply for a one year extension?

jillsjack · Post by **jillsjack** » Sun Mar 19, 2006 4:46 pm

Well I think that there is hope for those who think e.g noddy124 or kitkatgirl that they did not enter on the exact date their HSMP Visa initial year was starting that they will be a with some gap at the end of their FLR when applying for ILR.

The Home Office Website publishes the Guidance Rule and following is an extract from that

Indefinite leave to remain as a highly skilled migrant

135G. Indefinite leave to remain may be granted, on application, to a person currently with leave as a highly skilled migrant, provided that he:

(i) has had a continuous period of at least 4 years' leave to enter or remain in the United Kingdom in this capacity or has had a continuous period of at least 4 years' leave to enter or remain in the United Kingdom which includes periods of leave to enter or remain granted under paragraphs 128 - 319 of these Rules; and

(ii) for the period of leave as a highly skilled migrant, has met the requirements of paragraph 135A (i)-(iii); and

(iii) for any period of leave not in this capacity, has not had recourse to public funds; and

(iv) is lawfully economically active in the United Kingdom in employment, self-employment or a combination of both.

If you read it carefully it says:

has had a continuous period of at least 4 years' leave to enter or remain in the United Kingdom in this capacity

And I think the "Leave" here means the date your Visa starts. There may be actual times of absence in these four years when one was not in UK and visa does not require you to be physically inside UK all this time but absence should not go beyond a certain limit. Also please note that while you are not in UK physically your "Leave to Enter" still remains valid.

Post by **John** » Sun Mar 19, 2006 8:23 pm

It might be relevant to read the instructions that IND gives to its staff on this subject :-

SECTION 11 - HIGHLY SKILLED MIGRANT PROGRAMME - GUIDANCE

The wording that uses is :-

Has spent a continuous period of 4 years in the UK either under the terms of the HSMP ......

-: which does not look so hopeful.

The document also refers to Annex F of Chapter 5. That can be read by clicking here.

So kitkatgirl I think that if you do submit an application now it would probably be refused, and following that, if you wanted to fight that refusal, you would probably be in for a long hard struggle.

titas · Post by **titas** » Mon Mar 20, 2006 9:57 pm

Dear All.......... I got my extension for 3 years which is from the date of my initial stamp. I wrote to HO about the 4 years issue. They have replied me in writing that as per immigratin rules 135G (i). I'll be able to submit my application for ILR after 4 years of EC issuing date.

kitkatgirl · Post by **kitkatgirl** » Mon Mar 20, 2006 10:53 pm

Bugger

jillsjack · Post by **jillsjack** » Mon Mar 20, 2006 11:40 pm

John It seems titas has just reinforced the point I was trying to make?

Post by **John** » Tue Mar 21, 2006 8:08 am

jillsjack, I agree, that does support your interpretation. In reply I would say that it is a shame that the instructions given to IND staff do not reflect what they are saying, or maybe they are not reading those instructions carefully enough.

kitkatgirl, you applied for a limited leave extension ... has that now been granted? If so, for how long?

kitkatgirl · Post by **kitkatgirl** » Tue Mar 21, 2006 9:01 pm

I'm still waiting - it's been 2 weeks. I'll let you know you as soon as I hear.

The bad news is that becasue of all this, I've just lost the flat I was purchasing as the bank decided to turn me down for a mortgage at the last minute becasue I wasn't able to get the ILR, and the seller dumped me because they didn't want to wait for me to gt another mortgage.

aj77 · Post by **aj77** » Wed Mar 22, 2006 2:55 am

In the link
http://www.official-documents.co.uk/doc ... 4/0974.pdf

Statement of Changes in Immigration rules,point number 15 says

For Paragraph 135G(i) substitute:

i)he has spent a continuous period of 5 years in the United Kingdom in this capacity,or has had a continuous period of 5 years' leave to enter or remain in United Kingdom which is made up of periods of leave granted as Highly Skilled Migrant.................................................

so it is very much clear now that after those changes, HSMP applicant will get ILR after completing Five years of stay in UK.

Post by **John** » Wed Mar 22, 2006 8:41 am

Let's not overlook the fact that the document also says :-

These changes shall take effect on 3 April 2006.

That is, they are not in force at the moment.

Chess · Post by **Chess** » Wed Mar 22, 2006 11:08 am

titas wrote:Dear All.......... I got my extension for 3 years which is from the date of my initial stamp. I wrote to HO about the 4 years issue. They have replied me in writing that as per immigratin rules 135G (i). I'll be able to submit my application for ILR after 4 years of EC issuing date.

I am now more confused...

I thought ILR is after 5 years - arent the rules being applied retrospectively??

Post by **John** » Wed Mar 22, 2006 11:18 am

I thought ILR is after 5 years - arent the rules being applied retrospectively??

In a sense, retrospectively, but not until 3rd April!

So someone who has already been here say 4.5 years can apply for ILR now .... in March ..... but they cannot apply in April ... when the requirement is 5 years. You could say that they have been affected retrospectively. They would need to wait until 5 years is up.

Someone here say 3 years 10 months .... hoping to apply in April within the last 28 days before the expiry of 4 years .... well they can't. The retrospective change means they cannot apply until say April 2007.

Chess, is that any clearer?

slor · Post by **slor** » Wed Mar 22, 2006 12:56 pm

Council Directive 2003/109/EC - of 25 November 2003

Here is the EU Directive that they are implementing. Note Articles 3 and 4 regarding calculation of the 5 years. This includes 1/2 of time spent as a student. Looks like that has been overlooked by the UK legislation.

Post by **geriatrix** » Wed Mar 22, 2006 1:12 pm

1. What are the main changes to obtaining settlement in the UK and whom will they affect?

The main change is that the qualifying period, that is the amount of time that has to be spent lawfully being here, is being increased from 4 years to five years.

The only people affected are those in employment related categories of migration and those who have entered under the UK Ancestry category. This includes those in work permit employment, those setting up in business or self-employment; investors; innovators; and anyone whose basis of stay is primarily employment related.

2. Do these applicants still have to meet other requirements?

Yes, if in employment, they still have to show that there is a need for their skills and that their employer is going to use them for the foreseeable future. They will have to show that they are able to support themselves and any dependants without recourse to public funds.

Those not in salaried employment, e.g. investing, continuing in business or self-employment, etc., still have to show that they are maintaining the purpose for which they came, and that they can support themselves and any dependants without recourse to public funds.

3. What is the purpose of these changes?

In its paper ‘Controlling Our Borders’ the Government set out its view that permanent migration must also be a journey towards being as socially integrated as possible. Those in employment related routes to settlement now have to spend 5 years working in the UK before being eligible to apply for settlement. This brings us in line with the European norm for these purposes, and helps to ensure that settlement is a final stage of an on-going process of building an attachment to the UK.

4. When will the changes take place?

The changes will take effect from 3 April this year. They were announced as far back as February 2005 in the ‘Five Year Strategy for Asylum and Immigration’ where we said that ‘skilled workers will need to have been present, in employment and contributing to the Exchequer for five years (rather than four as now) before becoming entitled to apply for settlement’.

5. What will happen to people who have already made an application for settlement before 3 April?

Transitional arrangements are in place to ensure that those who apply immediately before the changes will have their applications handled under the old rules, even if the decision is made after 3 April. The date of application will be the date of postage.

We also have transitional arrangements for those who apply for settlement immediately after 3 April having only completed 4 years in the UK. Those applicants will have the opportunity to vary their application from a settlement application to a one-year leave to remain application without losing their original application fee. Work Permit holders will also require their employer to apply for a new work permit.

6. Will this lead to other changes in the way that applications are dealt with?

Some of the associated patterns will change but these are not substantial changes. Thus, for most people, a 5-year qualifying period leads to a pattern of leave being granted of 2-years followed by 3-years. This will be of benefit to those setting up in business or entering as investors, innovators and in a self-employed capacity where a 2-year initial leave period for establishing oneself is more realistic.

7. What other changes will applicants notice?

In order to qualify for settlement after 4 years, applicants were required to show that they would remain in employment, or viable self-supporting activity, for the foreseeable future. We are simply asking this state of affairs to continue and to be marked after 5 years instead of four.

The only group required to make an additional application under these changes are those applying under the UK ancestry provisions. This is because the alternative would have been to grant up to 5 years leave to enter from the beginning and this is regarded as too long a time for most groups to be without contact with the authorities. In addition, work permit holders with four years leave to enter and remain will need their employer to apply for a further work permit.

8. When you say that this change will bring us in line with the European norm, what exactly do you mean?

The European pattern is for people to be granted residence in order to pursue employment and for this to become permanent residence after 5 years. This becomes a right for EU nationals under the Free Movement of Persons Directive for EEA nationals exercising treaty rights after 30 April 2006.

Picked up from the website
Changes to the Immigration Rules - leave to remain and settlement

aj77 · Post by **aj77** » Wed Mar 22, 2006 4:09 pm

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

Received the following reply from the Home Office:

"Dear Mario

Thank you for your enquiry.

The announced changes in the immigration rules will come into effect on
April 3rd 2006.

Any concerns you have should now be addressed to your local MP.

Yours sincerely

Elizabeth Bennett
Managed Migration"

This is the reply received from HO by one of the members.

Post by **John** » Wed Mar 22, 2006 4:20 pm

slor wrote:Here is the EU Directive that they are implementing. Note Articles 3 and 4 regarding calculation of the 5 years. This includes 1/2 of time spent as a student. Looks like that has been overlooked by the UK legislation.

I don't think so, in the sense that the UK legislation as regards that EU Directive has not yet been announced. OK what they have already announced goes a big step in the required direction but it is totally clear that there is more to come, and not just as regards students. For example, they also need to deal with unmarried couples, given the current Unmarried Partner Visa provisions do not comply with the EU Directive.

So more eagerly awaited.

Immigrationboards.com: Immigration, work visa and work permit discussion board

ILR after 4 years on HSMP

ILR after 4 years on HSMP

The EU directive referred to in the Order

Q&A on changes to the ILR policy