The Home Office has now published a detailed guidance on those highly skilled migrants who were affected by the new rules published on 05th of Dec. 2006. The policy guidance gives very useful guidance on the various natures of cases and provides procedure to apply for extension of HSMP leave in accordance with the rules existed before 07th of Nov. 2006.

Who are eligible to make extension applications under the previous rules?

All those highly skilled migrants who obtained their HSMP approval letter under the rules in place before 07th of Nov. 2006 and who were given entry clearance or leave to remain on the basis of that HSMP approval letter.
Following is a list of such people who will benefit from the new policy:

• Those who applied for extension and got refused but did not go back (“overstayers”).
• Those who applied for extension and got refused and later switched to some other immigration category.
• Those who applied for extension, got refused and left the UK.
• Those who applied for extension, got refused and their case is still pending in appeals or Judicial review.
• Those who did not apply for extension and switched to some other immigration category.
• Those who did not apply for extension and went back and returned on a different immigration category.
• hose who did not apply for extension and went back and are still there.

Broadly speaking we can divide the Highly skilled migrants into two separate categories i.e.

A. Those who applied for extension and got refused.

B. Those who did not apply for extension. 

A. Those who applied for extension for their leave to remain and got refused. 

There can be three categories of such people i.e.

1. Those whose applications for FLR (HSMP) were refused and who switched to some other immigration category like work permit or Business Person visa or obtained any kind of leave to remain in the UK.

• These people can now ask the home office to review the decision.
• The home office will look at their case again and consider whether they met the requirements of extension of their leave that existed before 07th of Nov. 2006.
• They would be granted leave to remain for 3 years or for such a period enabling them to complete a total of five years of stay.
• The time that they have spent on any leave would be counted towards the five year settlement criteria.
• The grant of leave will confer the same rights and impose the same conditions as their previous HSMP leave.
• They would not be required to pay any additional fee to the home office.

2. These who were refused and left the UK.

• These people can now ask the home office to review the decision.
• The home office will look at their case again and consider whether they met the requirements of extension of their leave that existed at 07th of Nov. 2006.
• They would be granted entry clearance for 3 years or for such a period enabling them to complete a total of five years of stay.
• The time that they have spent outside the UK would be counted towards the five year settlement criteria.
• The grant of entry clearance will confer the same rights and impose the same conditions as their previous HSMP leave.
• They would not be required to pay any additional fee to the home office or to the British Diplomatic post overseas.

3. These who have got any appeals / JR pending against the refusal of their FLR (HSMP) application

• The Home office will withdraw the immigration decision and reconsider the migrant`s case and decide whether they met the HSMP extension of stay requirements in place before 7 Nov. 2006.
• They would be further leave to remain for 3 years or for such a period enabling them to complete a total of five years of stay.
• The time that they have spent outside the UK would be counted towards the five year settlement criteria.
• The grant of leave will confer the same rights and impose the same conditions as their previous HSMP leave.
• They would not be required to pay any additional fee to the home office.

B. Those who did not apply for extension

There can also be three categories:

1. Those who switched their immigration categories and have got leave to remain

• The migrant must have switched to some other category after 07th of Nov. 2006.
• The migrant can apply for extension of his stay as a highly skilled migrant even if he is in an immigration category from which switching to TIER 1 (General) is not permitted under the Immigration rules.
• The migrant must apply before 31st of July 2009, to benefit from the extension of HSMP leave to remain.
• Consideration: The home office will consider whether the migrant meets the requirements to switch to TIER 1 (General). In addition to the requirements of TIER 1, the migrant has to provide evidence that his HSMP leave expired after 07th of Nov. 2006.
• The migrant will be granted 3 years of leave to remain or such a leave to enable him complete five years in the UK.
• The grant of leave will confer the same rights and impose the same conditions as their previous HSMP leave.
• If the migrant does not meet the TIER 1 (General) criteria, then the Home Office will consider whether the migrant meets the HSMP extension criteria and grant 3 years or such a leave to enable the migrant complete his 5 years in the UK.
• Whether migrant is given TIER 1 (General) leave or HSMP leave, all that time he has spent on any other immigration category would be counted towards their five years of stay in the UK enabling them to apply for settlement.
• They would not be required to pay any additional fee to the Home Office.

2. Those who re-entered the UK in a different immigration category

• The migrant must have went back and returned to the UK after obtaining entry clearance for a different immigration category.
• The migrant can apply for extension of his stay as a highly skilled migrant even if he is in an immigration category from which switching to TIER 1 (General) is not permitted under the Immigration rules.
• The migrant must apply before 31st of July 2009, to benefit from the extension of HSMP leave to remain.
• Consideration: The home office will consider whether the migrant meets the requirements to switch to TIER 1 (General). In addition to the requirements of TIER 1, the migrant has to provide evidence that his HSMP leave expired after 07th of Nov. 2006.
• The migrant will be granted 3 years of leave to remain or such a leave to enable him complete five years in the UK.
• The grant of leave will confer the same rights and impose the same conditions as their previous HSMP leave.
• If the migrant does not meet the TIER 1 (General) criteria, then the Home Office will consider whether the migrant meets the HSMP extension criteria and grant 3 years or such a leave to enable the migrant complete his 5 years in the UK.
• Whether migrant is given TIER 1 (General) leave or HSMP leave, all that time he has spent on any other immigration category would be counted towards their five years of stay in the UK enabling them to apply for settlement.
• They would not be required to pay any additional fee to the Home Office.

3. Those who left the UK without making any extension of HSMP leave applications

• Those people who left the UK after 07th of Nov. 2006 may also apply for entry clearance as a highly skilled migrant.
• The deadline to make an entry clearance application is 31st of July 2009.
• The migrants must apply under TIER 1 (General) category and in addition to fulfilling the requirements they must also show that
  i. Their leave expired after 07th of Nov. 2006
  ii. They left the UK after 07th of Nov. 2006
  iii. They would have met the old HSMP extension of stay requirements when they were in the UK
• The migrant will be granted 3 years of entry clearance or such a leave to enable him complete five years in the UK.
• The grant of leave will confer the same rights and impose the same conditions as their previous HSMP leave.
• If the migrant does not meet the TIER 1 (General) criteria, then the British Diplomatic Post will consider whether the migrant meets the HSMP extension criteria and grant 3 years or such a leave to enable the migrant complete his 5 years in the UK.
• Whether migrant is given TIER 1 (General) leave or HSMP leave, all that time he has spent on any other immigration category would be counted towards their five years of stay in the UK enabling them to apply for settlement.
• Migrants will be charged the TIER 1 (General) entry clearance efree in place at the time of their application.