On April 6, 2009, the High Court ruled that those who joined the Highly Skilled Migrant Programme ("HSMP") prior to April 2006 should still be entitled to apply for ILR after 4 years. This has now been implemented by the UK Border Agency and guidance was published on 20 May 2009 - please click here.

The Earlier Challenge (extension applications)

In November 2006, a new points scoring assessment for HSMP extension applications was introduced which meant that some Highly Skilled Migrants were no longer eligible to extend their status. This was challenged and the Home Office was found to have acted unlawfully by applying the criteria to those already in the UK as Highly Skilled Migrants. Please click here for our previous Law-Now relating to this judgment.

This Judgement (ILR)

Before 3 April 2006, Highly Skilled Migrants (as well as other categories), were eligible for Indefinite Leave to Remain (colloquially referred to as Permanent Residence or "ILR") after 4 years continuous residence in the UK. This threshold was increased to 5 years on 3 April 2006 across all migrant categories.

The High Court has now ruled that the Home Office acted illegitimately by increasing the qualifying criteria for ILR from 4 to 5 years, particularly due to the promises made in the HSMP literature for those who joined the scheme before 3 April 2006.

The UK Border Agency's response

The UK Border Agency's guidance implementing the Court's decision can be found here.

The policy applies only to those who received a HSMP approval letter on the basis of an application made before 3 April 2006 and were granted a visa (entry clearance or leave to remain) on the basis of that letter.

This has several key impacts:

1. Eligibility for ILR - Although the guidance is unclear, CMS Cameron McKenna has now received clarification from the Home Office policy team that this judgement will benefit an applicant who submitted his HSMP application before 3 April 2006, who has now spent 4 years in the UK and who has current leave as either a Highly Skilled Migrant or a Tier 1 (General) Migrant.

Example

March 2006 - Applicant submitted HSMP application

June 2006 - HSMP approval letter issued

July 2006 - Visa application approved and granted for 2 years and applicant enters the UK

July 2008 - Applied for extension under Tier 1 (General)

September 2008 - Approved for 3 years.

Applicant now eligible to apply for ILR in July 2010.

2. Eligibility for naturalisation - Those mentioned above will be deemed to have been granted ILR from the date of eligibility for ILR not the date of approval. This impacts on naturalisation applications as for an applicant applying on the basis of residence in the UK, there must normally be a 12-month gap between obtaining ILR and applying to naturalise. It applies to those who already have ILR or who are now eligible/ will be in the future.

Example

April 2004 - Applicant granted leave to enter as a Highly Skilled Migrant

April 2008 - Applied for further extension to accrue time towards the five year qualifying period for ILR

April 2009 - Obtained ILR

Applicant now deemed to have obtained ILR in April 2008 and may be eligible to apply to naturalise immediately (April 2009 is 12 months after s/he is now deemed to have been granted ILR)

3. Compensation - A one-off payment will be made (on application) to those who, due to the changes, had to make 2 extension applications. Many of those affected will have been granted a one-year visa, followed by a 3-year extension and then a further extension. Effectively, the fee charged for the further extension is likely to be refunded on application before May 2010.

4. Review of ILR decisions refused - Those who met the requirements in 1 above but had their ILR application refused can apply for a review, whether or not they appealed this decision.

What about work permit holders or those on UK ancestry?

This policy does not apply to groups other than those with Highly Skilled Migrant status where the initial HSMP application was submitted before 3 April 2006.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 28/05/2009.