Fresh HSMP instead of initial HSMP extension

Eleven7 · Post by **Eleven7** » Sat Jan 20, 2007 2:34 pm

Hi all,

What about applying for fresh HSMP while one is already in the UK under HSMP? This will be helpful for members like me who arrived late in the UK and might not have even completed 8 months by the time their visa renewal is due but they still qualify as fresh applicant based on their earnings in their home country. Did any one try to investigate this option with HO?

Thanks for any ideas / thoughts / suggessions.

LondonBlonde · Post by **LondonBlonde** » Sat Jan 20, 2007 3:04 pm

Eleven7 - sadly, I don't think re-applying is going to work. I would contact an immigration solicitor for advice on how to stay in the country under HSMP.

LondonBlonde

Eleven7 · Post by **Eleven7** » Sat Jan 20, 2007 4:20 pm

LondonBlonde-Could you please elaborate your response as why do u think that its not going to work out? Is there any limitation as per the rule or something else?

LondonBlonde · Post by **LondonBlonde** » Sat Jan 20, 2007 5:03 pm

You won't be considered as a new HSMP applicant while still here on your first year under the same programme.

You probably won't find any rules that specifically state this, however you should know that the HO is expecting to get rid of a large number of HSMP visa holder. Because of this, I don't think you have a prayer as a new applicant. They will see an easy way to eliminate your visa, and act on it.

Your best option is to get legal help. I'm told that it may be possible to fight action from the HO as initially you were accepted under a different set of rules.

Good luck to you - LondonBlonde

Markie · Post by **Markie** » Sun Jan 21, 2007 10:15 am

Agree with LondonBlonde...you are already under HSMP in the first place and no point in applying for a fresh HSMP as HO will consider you as an individual seeking extension when visa is up or nearing expiration.

if you can switch to another category say Work permit then it is a different story.

Eleven7 · Post by **Eleven7** » Sun Jan 21, 2007 4:03 pm

Markie / LondonBlonde / All members,

Thanks for your comments. My problem is that I entered UK in SEP. It took me around 3 months to find my first job and my visa is due for extension in Feb 07. Although, I meet salary threshhold if considered on pro rata. I can't shift to workpermit as well because of that 8 months rule as I would have worked for 2 to 2.5 moths by that time. I qualify as fresh HSMP applicant based on income earned overseas during 12 months period. Is there any possibility for aplying as fresh applicant after extension refusal when I am not eligible to switch to WP. Any thoughts on this specific case after this clarification?

lanr3e · Post by **lanr3e** » Sun Jan 21, 2007 4:39 pm

"Can HSMP participants make a fresh inital application?" I dont think there's a straight forward answer. I am inclined to believe that it's possible as there's nothing in the rules that says you can't...but's the applicant's circumstance at the time of application may determine the outcome.

For example if an HSMP holder is approaching the end of the fifth year of working in the UK under HSMP and if he/she has not spent enough time in the UK qualify for settlement, I think it's possible for that applicant to make a fresh HSMP application provided he/she meets the requirement at that time and hence, maybe able to merge the the time spent on the previous HSMP status with the new one to qualify for settlement (that's if they don't change the rules again)

In your case, making a fresh appliaction at this time may not be successful bcos the home office may not accept your earnings from another country since they already know that you are here in the UK with a visa that allows you to work.
Remember the rules require you to submit evidence of your income in the last 12 months prior to your application i.e last the 12 months that you are supposed to be working except if you have been a full time student.

LondonBlonde · Post by **LondonBlonde** » Sun Jan 21, 2007 5:07 pm

Eleven7 wrote:Markie / LondonBlonde / All members,

Thanks for your comments. My problem is that I entered UK in SEP. It took me around 3 months to find my first job and my visa is due for extension in Feb 07. Although, I meet salary threshhold if considered on pro rata. I can't shift to workpermit as well because of that 8 months rule as I would have worked for 2 to 2.5 moths by that time. I qualify as fresh HSMP applicant based on income earned overseas during 12 months period. Is there any possibility for aplying as fresh applicant after extension refusal when I am not eligible to switch to WP. Any thoughts on this specific case after this clarification?

Eleven7, again you will be ejected from the country unless you find a good immigration atty who can fight action from the HO. I keep repeating this because I think it's your only hope.

It's unfair that the rules were changed isn't it? You have accidentally disqualified yourself for FLR when you delayed entering the country last year.

Because you would have been fine under the old rules, I think you have a better chance if you take legal action.

LondonBlonde

WoodieG · Post by **WoodieG** » Sun Jan 21, 2007 8:03 pm

"Thanks for your comments. My problem is that I entered UK in SEP. It took me around 3 months to find my first job and my visa is due for extension in Feb 07. Although, I meet salary threshhold if considered on pro rata. I can't shift to workpermit as well because of that 8 months rule as I would have worked for 2 to 2.5 moths by that time. I qualify as fresh HSMP applicant based on income earned overseas during 12 months period. Is there any possibility for aplying as fresh applicant after extension refusal when I am not eligible to switch to WP. Any thoughts on this specific case after this clarification?"

I don't see anything in the rules that would prevent you from doing this. If you use the first 12 months in the last 15 months and that gets you enough points for your earnings then there is no reason for them to reject your application just because you are already on the scheme. You'd need to mention in your covering letter(s) that you know what you are doing, just to make sure they know it isn't a mistake. You really need to speak to the HO about this, get them to contact their policy team for a definitive answer - get it in writing.

"For example if an HSMP holder is approaching the end of the fifth year of working in the UK under HSMP and if he/she has not spent enough time in the UK qualify for settlement, I think it's possible for that applicant to make a fresh HSMP application provided he/she meets the requirement at that time and hence, maybe able to merge the the time spent on the previous HSMP status with the new one to qualify for settlement (that's if they don't change the rules again)"

Surely such a person would want to apply for an extension?
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Coach Purses

LondonBlonde · Post by **LondonBlonde** » Sun Jan 21, 2007 8:16 pm

Eleven7 - be sure to let WoodyG know how wrong he was next month...

LondonBlonde

WoodieG · Post by **WoodieG** » Sun Jan 21, 2007 8:25 pm

Let me get this straight, you acknowledge that there is no rule stopping it but I'm wrong? While you, based on no evidence whatsoever, are right?
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Health Shop

Eleven7 · Post by **Eleven7** » Sun Jan 28, 2007 10:09 am

I mailed HO for clarification and after 3 days received an automaed response to check FAQ section. Its very difficult to contact them on phone during working hours. I am planning to apply for extension during 3rd week of Feb and then will apply for HSMP again if I decision is not in my favour. I will keep you all posted on any progress on my case. Thanks to all who contributed to this query.

rella · Post by **rella** » Sun Jan 28, 2007 10:30 am

Interesting question...

My guess is that you could get the new HSMP. The caseworkers will just go through the criteria and check it off it you have the documents to prove your case. And that's just a guess, based on our SUBSTANTIAL experience with the HSMP team.

The sticky part is the FLR. You can switch from one WP to another WP and from HSMP to WP and vice versa. But... I don't think I've ever seen switching from HSMP to HSMP. I think one argument might be that the scheme has substantially changed and that you want to start fresh under the new scheme.

I think it's worth a chance. But, I'm not quite sure what your odds either.

One other option is that instead of switching in-country... you apply for an HSMP fresh from your home country and go back home and apply for EC just after your first visa expires. What's your home country? Some are much easier to get EC from than others. But.. there's a lot of risk and expense involved.

But really... if you're going to be refused (though you may be ok if the JR is won), I don't see why you can't just apply fresh from your home country and come back in again. Will your employer let you have a week or so to go home and do this?

MTA: Thinking a bit more about this, you do have an excellent point for appeal -- firstly, the retrospective changes. Secondly, the fact that you can get adequate points under the new scheme for a fresh application seems to make the appeal tighter and it also underscores the lack of thought in the new rules.

One question, though... Has anyone applied for extension when they know they'll be refused? I'm wondering if the FLR team just sends back the application without consideration or if they give a refusal letter with right to appeal.

There are so many complications and unknowns, that it makes it tough to know what to do. If you can be refused with grounds for appeal, you can work legally while you work through the appeals process and hopefully the JR will protect you as well. You need to see what your window is for a new app too, to make sure that you maintain the level of points for approval if you need to apply from scratch.

Good luck.

Eleven7 · Post by **Eleven7** » Sun Jan 28, 2007 1:23 pm

Rella,

Appreciate your detailed comments. Just a couple of queries to clarify some doubts. Is it possible to apply as fresh Applicant while in the UK and then get EC from home country or do I have to start the complete process from home country? I am from Pakistan and my previous job over here was at Saudi Arabia. Is it possible for me to get EC from Saudi as its lot faster over there but they need letter from employer but I am currently not employed. Last thing, whats this "JR" mentioned in your mail. Cheers

OFCHARITY · Post by **OFCHARITY** » Sun Jan 28, 2007 1:25 pm

I called the HSMP Team and specifically asked them if one can make a fresh HSMP application while already in the country on an HSMP visa and the answer was no.

OFCHARITY · Post by **OFCHARITY** » Sun Jan 28, 2007 1:31 pm

Sorry to reply to my own reply, but there is nothing to say that if you take the chance and apply you may not be successful as it may very well come down to the case worker / entry clearance officer your case ends up with, you just never know.

rella · Post by **rella** » Sun Jan 28, 2007 1:45 pm

I agree with Ofcharity that it really depends on the caseworker. And I think that with the rule changes, they've taken more and more discretion away from the caseworker.

If you apply as out-of-country, then you'll have to apply from your home country, as I understand it. Were you resident in SA before and were you able to get EC there?

My *guess* is that you'd have to apply from Pakistan and go back and do EC there. And from what I've seen on this forum, EC from Pakistan is not a given.

It would be a very good idea to check with a solicitor. JR is judicial review. Are you familiar with the HSMP Forum group? (http://www.hsmpforum.com/)? They have hired the best immigration law practice in the UK to take the HO to court for retrospective rule changes. I think your case is a perfect example case. If I were you -- especially with very limited time to get your FLR app in, I'd consult with this law firm and see what they suggest. I believe that members of the HSMP Forum group get a free consult with the solicitor -- charges then apply for more advice. If you haven't joined that group yet, I suggest you get in touch with the guys over there. Your case is exactly the type they need if the judge hears the case (which IMO is highly likely).

All of our advice here is a bunch of conjecture and all we can do is guess what might happen for whichever course you take. If you really want to stay here in the UK, I think consulting a solicitor is crucial.

Please keep us posted.

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Fresh HSMP instead of initial HSMP extension

Fresh HSMP instead of initial HSMP extension