ILR or FLR for HSMP visa holders completing 4 years

Can anyone advise as to what shall be the best course of action for people who got HSMP visa issued before Nov 2006 and are now completing 4 years; shall they apply for ILR or FLR.
The Home Office changed the rules in Nov 2006 and applied those changes retrospectively, a Judicial review case was won’t last year and Home Office was told that they shall extend all those facilities to the HSMP visa holders which were there at the time when they joined the scheme and that included option to apply and get a ILR visa after 4 years of continuous stay.  The Home Office has implemented the High Court ruling in part but still maintaining that all HSMP holders even those who joined before Nov 2006 need to complete 5 years.
In order to challenge this unfair retrospective application of the change in rules with regards to qualifying period for ILR another Judicial review case has been filed at the High Court and the hearing is due for the 13th march, 2009.
Now if anyone who has completed the 4 years under the scheme applies will his application be granted or refused? If refused will he/she be automatically awarded a FLR?

Thank you

Here's the UKBA guidance on the Judical Review:

http://www.ukba.homeoffice.gov.uk/workingintheuk/tier1/hsmp/hsmpjudicialreview/

and

Those currently on an HSMP issued prior to 7 Nov. 06 & needing an extension of their stay:

http://www.ukba.homeoffice.gov.uk/workingintheuk/tier1/hsmp/hsmpjudicialreview/extensionofstay/

and

ILR requirements for HSMP holders:

http://www.ukba.homeoffice.gov.uk/workingintheuk/tier1/hsmp/settlement/

Thank you for your response.

I had seen these links already but they do not address the objective of my question.
I had read somewhere on  the Home office website that if you apply for ILR and do not meet the 5 years qualifying period you will be granted a FLR automatically, I am not able to find it now. Can anyone point to an official text/link to this effect please?

Also another thing that I had in my mind was that if the ILR applications fails due to the shortage of qualifying period are granted FLR automatically then would it be to the advantage of pre Nov 2006 HSMP holders to apply for ILR as the result of Judicial Review will come in a few weeks and hopefully like in the previous instance once the Home Office to remove this unfair application of new rules retrospectively then those who were given FLR in response to their ILR application might be able to get their ILR without payment of additional fee?   

I am aware of people who were refused ILR after 4 years had taken the Home Office to tribunal and won their cases on individual basis too: http://www.hsmpforumltd.com/aitappeals.html [nofollow]

I had seen these links already but they do not address the objective of my question.
I had read somewhere on  the Home office website that if you apply for ILR and do not meet the 5 years qualifying period you will be granted a FLR automatically, I am not able to find it now. Can anyone point to an official text/link to this effect please?

That was a transitional arrangement for people on ancestry visas.  It wouldn't apply to you.

Also another thing that I had in my mind was that if the ILR applications fails due to the shortage of qualifying period are granted FLR automatically then would it be to the advantage of pre Nov 2006 HSMP holders to apply for ILR as the result of Judicial Review will come in a few weeks and hopefully like in the previous instance once the Home Office to remove this unfair application of new rules retrospectively then those who were given FLR in response to their ILR application might be able to get their ILR without payment of additional fee?   

You are banking ont he review being successful.  I am sceptical of this.

Vicky





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I agree with Vicky.  Three times lucky is an overreach.

Thank you for your input garry and VictoriaS.

You are banking ont he review being successful.  I am sceptical of this.

Can you please let me know why you are sceptical of it? Especially considering the fact that various people have been granted ILR after 4 years of stay after appealing and in the judgements it has been categorically mentioned that the decision of the Home Office to apply changes retrospectively are illegal in the HSMP case.

If it's anything like the other 4-to-5 year Judicial Review, the Home Office will just stall and reschedule and stall some more for another year until everyone affected has their ILR anyway and it'll get dismissed for not being relevant anymore. (Can you tell I'm still bitter about that?)

Can you please let me know why you are sceptical of it? Especially considering the fact that various people have been granted ILR after 4 years of stay after appealing and in the judgements it has been categorically mentioned that the decision of the Home Office to apply changes retrospectively are illegal in the HSMP case.

Well and the JR you mention here was about HSMP people who were excluded from the country and had no choice but to return to their home country.  A group of Ancestry visas just lost a similiar appeal, and they were still in the UK.  The JRs see, tp be leaning towards exclusion being the litmus test for retroactive rule changes.  We are trying to figure out what the difference is, but just because a Judge slaps UKBA with a JR doesn't make UKBA change their policies.  I mean UKBA is still feeling they are perfectly aligned with Metock ruling.

Absolutely.  It is because of the Ancestry ruling that I am sceptical.

Vicky

Thank you for all your input!

That was a transitional arrangement for people on ancestry visas.  It wouldn't apply to you.

Vicky with regards to the above, I have seen a couple of posts on this forum regarding applying of ILR too early for a married couple:

So you qualified for ILR on 31st July 2008, which means the earliest date you should have applied was 2nd July 2008.  Hmmm.  You did apply very early.  You are likely to be refused ILR and granted further leave until the 31st July, when you will have to apply again. The problem is also that they won't refund the different in cost.

So does that mean that FLR is granted instead of ILR only in case of ancestry and married cases?


Thank you

As far as I know, there is no automatic provision for FLR to be granted in a case where an ancestry visa holder applies erroneously for ILR.  If it has happened, it is the exception, as I have certainly represented several people who have been caught out by this.

Vicky

Hi there,

can you update us what happed ? did you get ILR or FLR? i think ILR JR should help us all . did you get visa or you were asked for icard ?

keep me updated as i also fall in same category

regards

Romy

Can anyone advise as to what shall be the best course of action for people who got HSMP visa issued before Nov 2006 and are now completing 4 years; shall they apply for ILR or FLR.
The Home Office changed the rules in Nov 2006 and applied those changes retrospectively, a Judicial review case was won’t last year and Home Office was told that they shall extend all those facilities to the HSMP visa holders which were there at the time when they joined the scheme and that included option to apply and get a ILR visa after 4 years of continuous stay.  The Home Office has implemented the High Court ruling in part but still maintaining that all HSMP holders even those who joined before Nov 2006 need to complete 5 years.
In order to challenge this unfair retrospective application of the change in rules with regards to qualifying period for ILR another Judicial review case has been filed at the High Court and the hearing is due for the 13th march, 2009.
Now if anyone who has completed the 4 years under the scheme applies will his application be granted or refused? If refused will he/she be automatically awarded a FLR?

Thank you

Anyone falling into this category should contact the HSMP Forum.  They are in a much better posistion to articulate what the latest JR has affect on.  Also, from my understanding the relief to be granted has not been stated by UKBA yet, and the HSMP Forum is tracking this.