NEW HSMP LAW CHANGES, WHAT TO DO NEXT
By; Amjad Malik, MA, LLMSolicitor-Advocate Supreme Court (England) I am writing this article on the above issue for the benefit of migrants who are already in UK in HSMP category and I have been told that they are over 25,000 from Pakistan and around 100,000 will be affected including their families. HSMP migrants range from Doctors, Engineers, teachers, nurses and lawyers etc who have migrated to Britain leaving everything behind to earn their living in UK and have made it their second and they are considering to apply to UK and highly skilled migrant category and have mobilized in UK economically and will be affected with the new changes introduced on November 2006. The Highly Skilled Migrant Programme was set up in January 2002 as a route through which "particularly talented" people could apply to work in the UK. It differs from the work permit arrangements in that it does not require an employer to obtain a work permit for the individual. Applicants are assessed on a points system based on their qualifications, earning ability and experience. The latest changes for the Highly Skilled Migrant Programme were announced on 7 November 2006. The points requirement has gone up to 75 points from 65, however, with the other changes some people may find it easier to come under the new HSMP system. The latest changes for the Highly Skilled Migrant Programme were announced on 7 November 2006. To make a successful application you will now need to provide evidence that you score 75 points or more in the categories set out below and demonstrate that you will be able to continue your career in the United Kingdom along with strong English language command. One does not have to score points in all categories to qualify under the program, as long as the applicant scores a total of at least 75 points. Points are awarded on the basis of a number of factors as following:
Young Person Assessment 20 points
Qualifications 50 pointsEarning Power 45 pointsUK Experience 5 pointsEnglish Language Ability Other Requirements Applicant will gain points based on degree level qualification, or professional level qualifications. Unfortunately, there are no extra points for a 4 year Bachelors degree rather than a three year degree, or for having more than one degree at any given level (e.g. B.Sc and B.eng, or M.Sc and MBA). If applicant wishes to score points based on professional qualifications they will need to show the equivalency of this to the relevant British Qualification. This will need to be validated with the National Academic Recognition Information Centre Database. If applicant(s) have attended one of 50 eligible MBA programmes and graduated since 2 December 2004, they may be eligible under the MBA provision of the HSMP. List of the 50 eligible institutes is also enclosed at the advice. One will have to gain 75 out of 120 points to be successful in obtaining HSMP approval and or visa. Previously before amendment on 65 points immigration was given prior to the new changes came in to force. Following was the old criteria: Points are awarded on the basis of a number of factors:Young Person Assessment Maximum 5 Points Qualifications Maximum 30 Points Work Experience Maximum 50 Points Past Earnings Maximum 50 Points Achievements Maximum 25 Points Partners Achievements if graduate Maximum 10 Points Priority application - Currently only for doctors allowed to practice as General Practitioners in the UK Maximum 50 Points Other Requirements: Any person achieving 65 points out of 220 was entitled to UK immigration and once he enters UK after 1 year o stay if he is economically active his or her visa was extended for further 3 years and total 4 years would entitle them Indefinite Leave to remain in UK on the basis of following old rules 135 of HC 395. The existing migrants who entered UK on the old scheme may be able to switch as well as obtain Permanent residence upon completion of their probationary period, however new applicants will face the strict requirements post November 2006. New Rule 135 has totally changed the previous scheme. 135 Rule requires 75 points on new changed rule and criteria has changed too which is alleged discriminatory too on age and nationality basis. New rule 135 says as following;”The existing migrants who entered UK on the old scheme may apply to extend and or indefinite leave on the following basis: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).” 135DA deals with the requirements for an extension of stay as a highly skilled migrant for a work permit, 135B for student, 135C for a postgraduate doctor or postgraduate dentist, 135D for a working holidaymaker, 135E for a participant in the Science and Engineering Graduates Scheme and 135Ffor an innovator are that the applicant. The requirements for an extension and permanent stay a highly skilled migrant is described in details at the following: Paragraph 135 of HC 395 please visit the link: http://www.ind.homeoffice.gov.uk/lawandpolicy/immigrationrules/part5.
Indefinite leave to remain maybe granted, on application, to a person currently with leave as a highly skilled migrant, provided that he has had a continuous period of at least 5 years' leave to enter or remain in the United Kingdom and meets the criteria set in 135 G & HA. The new regime under which qualifying period for indefinite leave has increased to 5 years and points have increased to 75 on a different criteria is alleged discriminatory and wednesbury unreasonable and is challengeable as it will put thousands of families in an ‘illegal catchments’ if they are unable to extend their visas despite being resident in Britain and economically active. This rule change will affect not only the applicants who will apply afresh but most important of all the existing ‘highly skilled migrants’ who have sold all their belongings and made Britain their home are likely to suffer the most. They will have to comply to the following:1) they will have to secure over 75 points under new criteria which totally ignore the old criteria under which old HSMP migrants entered. 2) There will be age discrimination as over 32 will not gain any points as opposed to most of the Immigrants who came to UK in last 5 years were around or over 30 years old.3) Secondly, they will have to complete 5 years to obtain Indefinite Leave to Remain. If the readers look at the old criteria over 100,000 overseas graduates from all around the globe came to UK leaving their jobs and homes to join and contribute British economy. They were experienced and graduates. However new changes will take them out of the consideration despite the fact that they are already part of the system. Their over 10 years experience is worthless and they may not qualify even if they are completing their 4th year of residence. Human Rights groups and lawyers organisations feel that this policy and change of rule may apply to fresh candidates of British Migration, however the ones who have already joined must not be penalised for selecting Britain as their home. Therefore, john Reid Secretary of State responsible for this department should announce in the following: a. Announcement forthwith by Secretary of State of a policy concerning existing Highly Skilled Migrants that a policy will be announced to accommodate those who are in UK and are affected by the changes of Rule 135 of HC 395. b. Announcement forthwith by Secretary of State that appropriate consideration will be given to accommodate those who are already in UK and are economically active to be granted extension of stay on case by case basis and on the basis of old rule as they may be discriminated due to age restrictions put in the new rules and difference of criteria to assess points. c. Existing Migrants on HSMP basis will be able to obtain ILR upon completion of 4 years as opposed to 5 years as in new Rules Anyone affected by these rules must contact straightaway for legal advice and they may write to SSHD themselves and or through their Member of Parliament on the following address: Rt. Hon. John Reid, Secretary of State for Home Affairs, House of Commons, London, SW1A OAA. It is imperative that action is taken before their current visas run out. I feel a challenge may be brought by an individual and or group of affected migrants via a judicial review application to High Court challenging individual refusals of extensions as well as difference of approach in old and new rule, assessment criteria as well as issues which breaches migrant’s core human rights on the basis of age and nationality and these changes are challengeable and questionable under ‘wednesbury unreasonable’ test. P.S. Amjad Malik is a Solicitor-Advocate of the Supreme Court of England and Wales, a member of Law Society’s Immigration Law committee, and may be contacted at 01706-346111 or email him with your CV for free individual advice at AMSolicitors@aol.com. Note: I am sure this article will benefit those who are intending to apply afresh, however if someone is in UK and is struggling with their extension application(s) I would recommend to seek independent legal advice immediately. Immigration advice may be available free from OISC listed advisors or email at: info@oisc.gov.uk, or you may also obtain three immigration practitioners names from the Law Society number 0044 207-242 1222 or email them at info@lawsociety.org.uk that may be able to assist further or if you wish to have an independent advice further. Please visit Home Office web site for further details and guidance on HSMP: http://www.workingintheuk.gov.uk/content/working_in_the_uk/en/homepage.html.
- Posted by valiantpk on 03/01/2007.
- valiantpk's site
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