Policy announced to implement HSMP Forum judgment

Updated by Gherson on Friday 11 July 2008. | | | | | | |

The UK Borders Agency (the “UKBA”) yesterday  published a new policy in the light of the HSMP Forum’s successful application for judicial review of the changes to the qualifying criteria for extensions of leave to remain under the Highly Skilled Migrant Programme (“HSMP”). 

The policy is designed to implement Sir George Newman’s judgment, which we reported back in April  .   The judgment was to the effect that the Border and Immigration Agency  (as the UKBA used to be) had unlawfully changed the qualifying criteria which people who had entered the UK under the HSMP had to meet in order to be granted an extension of their leave to remain under the scheme. 

Before the changes people in the UK under the HSMP only had to show, when they were applying for an extension of their stay in the UK, that they had taken all reasonable steps to be economically active.  This was what was required by rule 135D of the immigration rules before the HSMP was suspended on 7-11-2006 and before rule 135D was changed in December of 2006:

135D The requirements of an extension of stay as a highly skilled migrant, in the case of a person who was granted leave to enter under paragraph 135A, are that the applicant:

(i) entered the United Kingdom with a valid United Kingdom entry clearance as a highly skilled migrant; and

(ii) has already taken during his period of leave all reasonable steps to become lawfully economically active in the United Kingdom in employment, self-employment or a combination of both; and

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

 After the changes to get an extension of stay they had to score a minimum number of points for previous earnings, qualifications, age and UK experience, as well as meeting an English Language requirement.   The new rule 135D required:

"135D. The requirements for an extension of stay as a highly skilled migrant for a person who has previously been granted entry clearance or leave in this capacity, are that the applicant:

(i) entered the United Kingdom with a valid United Kingdom entry clearance as a highly skilled migrant, or has previously been granted leave in accordance with paragraphs 135DA-135DH of these Rules; and

(ii) has achieved at least 75 points in accordance with the criteria specified in Appendix 4 of these Rules, having provided all the documents which are set out in Appendix 5 (Part I) of these Rules which correspond to the points which he is claiming; and

(iii) (a) has produced an International English Language Testing System certificate issued to him to certify that he has achieved at least band 6 competence in English; or

(b) has demonstrated that he holds a qualification which was taught in English and which is of an equivalent level to a UK Bachelors degree by providing both documents which are set out in Appendix 5 (Part II) of these Rules; and

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

The challenge succeeded because the people affected by the changes had been told, in guidance documents produced by the BIA, that they would not be affected by an any changes to the criteria for entry or leave to remain under the HSMP which might take place after they entered the UK under the scheme.   They had been assured that they were on a path to settlement in the UK. 

This “promise” had effectively been reneged upon by the Secretary of State, who had refused to consider applications for extensions of stay under the criteria contained in rule 135D before it was changed in December 2006. 

The policy therefore applies to anyone who entered under the HSMP before the rules were changed in December of 2006.    They fall within 3 categories, comprising people who:

i) currently hold HSMP leave and have either applied for an extension of stay or will need to do so in the future;

ii) have been refused an extension of stay under the changes to the qualifying criteria  introduced on 5 December 2006; or

iii) did not apply for an extension of stay following the changes in December 2006. 

People in the first category will be granted leave to remain under the same conditions as applied to their previous HSMP leave.  The duration of the leave will be either 3 years (which is what they would have been given if the rules  had not been changed) or:

“enough leave to enable the applicant to complete the qualifying period for settlement.    Their previous leave will count towards the qualifying period for settlement as a highly skilled migrant.” 

The policy’s provisions for the second category – people who have been refused an extension of stay – refer to 3 subcategories.  These are;

i) people who switched to a different immigration category or who were otherwise granted leave to remain in the UK

ii) people who left the UK having been refused an extension of stay and

iii) people who have an outstanding appeal or judicial review against the refusal

People in the first subcategory will have the refusal reviewed.  If they qualify under the criteria as they were before December 2006 they will get 3 years’ leave to remain or enough leave to enable them to qualify for settlement. 

People in the second subcategory – i.e. those who left the UK after the refusal of their extension application on a basis since found to have been unlawful, will be entitled to a review of the decision to refuse their applications.  If they qualify under the criteria as they were before December 2006 they will be given an entry clearance which itself will give them 3 years leave or enough leave to enable them to qualify for settlement.   Importantly the qualifying period for settlement will include:

i) the time they spent in the UK with HSMP leave before they left

ii) the time between the end of this leave and the start of the new leave and

iii) the duration of the new grant of leave under the HSMP. 

People in the third subcategory, those who have outstanding appeals against the refusals of their applications or who are engaged in judicial reviews (it must be said that there can’t be substantial numbers of such people unless the Asylum and Immigration Tribunal had adjourned large numbers of such appeals pending the litigation in the Administrative Court – and there is nothing to suggest that this was the Tribunal’s practice) will have the decision they are challenging withdrawn.  A new decision under the unaltered criteria will then be made.    As in the other categories people who qualify will either get 3 years’ leave or enough leave to complete the qualifying period for settlement.

The last of the three categories comprises people who did not apply for an extension of their stay under the HSMP.  The policy provides for those who either switched to another immigration category and for those who left the UK.

People who have switched to another category can, until 31-7-2009, apply for an extension of stay as a highly skilled migrant.   If they do the UKBA will first consider whether their application entitles them to an extension of stay as a Tier 1 (General) Migrant.   The policy states that the usual requirements for an extension of stay in this category (which are set out in rule 245C of the current immigration rules) will apply with one additional requirement, which is that the applicant’s leave to remain under the HSMP expired after 7-11-2006. 

If they do not qualify under the requirements for leave to remain as a Tier 1 (General) Migrant the UKBA will then proceed to consider whether they qualify for leave to remain under the HSMP (i.e. under the unaltered rule 135D).

The applicant’s leave under the HSMP before he or she switched as well as time in between that grant and any further grant of leave, whether as a Tier 1 (General) Migrant or under the HSMP, will all count towards the qualifying period for settlement.  

They will be given either 3 years’ leave or enough leave to enable them to qualify for settlement.

Those who left the UK without applying for an extension can apply for entry clearance under the HSMP.  They must do so before 31-7-2008.  When and if they do the UKBA will also decide whether they qualify for entry clearance under as a Tier 1 (General) Migrant.  The same periods of leave will be granted as in the former categories and they will be able to rely on the entirety of their periods of leave, as well as upon the period between the expiry of the first grant and the beginning of the new grant towards the qualifying period for applying for settlement.

The policy is strangely silent about the circumstances of people and their families who have not left the UK following the refusal of their applications for an extension of stay.   The policy does warn, however, at paragraph 53:

“General Grounds for Refusal

53. Where the applicant falls for refusal under the General Grounds for Refusal in paragraphs 320-322 of the Immigration Rules, we will refuse their application even if it otherwise qualifies under the terms of this policy. This might happen, for example, if they have previously broken UK immigration law or have a relevant criminal conviction.”

It would be peculiar if people who have not left the UK following the refusal (later found to have been unlawful) of their extension applications could be prevented from obtaining a lawful decision by the existence of general grounds for refusal.  Some people would say that this was an example of the UKBA’s benefiting from its own unlawful act.  Perhaps there will be some further clarification from the UKBA concerning people in these circumstances.