Internal Guidance Regarding Settlement Eligibility after HSMP

Dear Sir or Madam,

I would like to request the full internal guidance used by UKBA
Caseworkers whilst dealing with SET(O) applications for the
following scenarios:

a) My first question is regarding the calculation of the 5 years
residence eligibility criteria. The guidelines for the SET(O)
applications states "Please do not apply more than 28 days before
completing that qualifying period."

Now consider the following scenario, a person on a Student Visa
whist studying here in the UK finds a job in the UK and changes his
visa over to a Work Permit whilst he is still resident in the UK.
The Work Permit is issued on 20 July 2004 and is valid until 31
July 2007. He then changes over to a HSMP visa in 2007 which is
issued on 13 July 2007 and is valid until 13 July 2009.

Based on the Guidance Note stated above the person is eligible to
apply for settlement on 22 June 2009 (28 days earlier than the 5
years from the date of issue of the Work Permit). However the fact
that the person applied for his HSMP visa earlier, the WP and HSMP
visa dates do not add up to the full 5 years and is short by 7
days.

Are such shortfalls up to 28 days covered by the 28 days early
application policy? What are the exact guidelines for dealing with
such shortfalls?

b) My second question is regarding the economic activity whilst on
the HSMP visa. Part 5 (Persons seeking to enter or remain in the
United Kingdom for employment) of the Immigration Rules:

"Section 135G
(iii) is lawfully economically active in the United Kingdom in
employment, self-employment or a combination of both; and"

Now consider the following scenario. A person has been in the UK on
a Work Permit for 3 years (employed throughout the 3 years) then
gets a 2 year HSMP (general category) visa. However he is
unemployed in the first year during which period he is able to
support himself and any dependants using personal savings and not
having any recourse to public funds. He then finds employment in
the second year whilst on the HSMP visa. Now at the end of the
second year on the HSMP visa he has completed 5 years on a
combination of Work Permit and HSMP.

Based on the immigration rules quoted above, as the person is
currently in employment and has been able to support himself and
any dependants for the full 5 years without recourse to public
funds he is eligible for settlement.

Does this mean that the HSMP holder are eligible for settlement at
the end of their qualifying period if they are working at the time
of application and not necessarily for the entire duration of their
stay in the UK on the HSMP visa as long they have been able to
sustain themselves and any dependants without recourse to public
funds.

What are the internal guidelines with regards to economic activity
for settlement based a combination of Work Permit and HSMP (General
Category) visa?

I would be highly obliged if the full UKBA Caseworker internal
guidelines applicable to these above scenarios are made available
to myself.

Yours faithfully,

A. Ahmad

Dear Workpermits, Policy,

Thank you for your response. I would be very grateful if you can
offer further clarification with regards to the qualifying period
for ILR. The Immigration rules for ILR state:

"(i) has spent a continuous period of 5 years lawfully in the
United Kingdom …"

You have mentioned in your response that the Immigration rule
quoted above does not allow for any shortfall.

My query is why then does the application form SET(O) allow
applicants to apply 28 days before the end of the qualifying
period. If the requirement for ILR is that the applicant "has spent
a continuous period of 5 years lawfully in the United Kingdom",
then if the application is made 28 days before the end of the 5
year qualifying period (for ILR after HSMP) the applicant has
clearly not fulfilled this requirement of 5 years continuous stay.

I would therefore be very grateful if you can clarify as to why 28
days early applications are accepted and whether the same 28 days
concession is applicable in the scenario stated in my original
query.

Yours sincerely,

A Ahmad

Dear Fiona (Employment Policy),

Thank you for your reply. I would be very grateful if you can
assess the following scenario as per your statement: “Valid
applications are always accepted, however, if the settlement
requirements are not met, then the application will be refused”:

Say an applicant has the following visa timelines:
WP granted: 01 Mar 2004 (in country switch from Student Visa),
WP valid until: 19 Feb 2009 (10 days short of 5 years),
PEO (in person) application date: 14 Feb 2009 (15 days prior to 5
years).

Now if all other requirements for settlement following legal
residence on an employment visa (WP in this case) are met, will ILR
be granted in this case?

If ILR is to be refused on grounds of the 10 days visa shortfall,
can you please elaborate on the reasons as I believe the settlement
requirement is based on length of legal residence on an eligible
visa (WP in this case) rather than the length of time for which the
eligible visa (WP in this case) is issued. Considering that 28 days
early applications are valid as per the SET(O) guidelines, refusal
on the 10 days shortfall would not be compatible with the very same
guidelines allowing early application.

Thanking you again for all your assistance in the matter.

Yours sincerely,

A Ahmad