UK IMMIGRATION NEWS

Changes to indefinite leave to remain (ILR) for the highly skilled migrant programme (HSMP)

Thursday, 16 April 2009

Prior to 3 April 2006, those under the HSMP who wished to apply for ILR were required to show that they had spent 4 years' continuous residence in the UK. On 3 April 2006, the 4 year qualifying period was increased to 5 years' qualifying residence. Due to this change, a large number of HSMP holders did not qualify for ILR.

The HSMP Forum Ltd filed a Judicial Review on 8 October 2008 against the Home Secretary challenging the increase of the 4 to 5 years qualifying period. The Forum argued that those who entered onto the HSMP before the change to the qualifying period for ILR should be eligible for ILR after 4 years on the scheme. The judge found in favour of the Forum on this point by stating:

"I find that the terms of the scheme, property interpreted in context and read with the guidance and the rules, contain a clear representation, made by the defendant [the Forum], that once a migrant had embarked on the scheme he would enjoy the benefits of the scheme according to the terms prevailing at the date he joined."

The Judgment concluded "in the circumstances, I am satisfied that the terms of the original scheme should be honoured and that there is no good reason why those already on the scheme shall not enjoy the benefits of it as originally offered to them."

The HSMP scheme before the April 2006 ILR changes promised 2 main benefits to migrants: extensions would be granted based on economic activity and settlement after 4 years of continuous residence in the UK.

The High Court ruled that the UK Home Office acted unlawfully in applying the retrospective HSMP extension criteria changes to migrants already admitted to the HSMP scheme as at the 7 November 2006.

The Home Office has decided not to appeal against the HSMP ILR Judicial Review ruling and will soon publish remedies available to those migrants who may be affected by the judgment.

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