NEW LAWS JULY 2011

[David12345]

HI THERE MY SITUATION IS :

I CAME INTO UK AS A STUDENT IN 2005
I GOT MARRIED TO A BRITISH CITIZEN AND GOT MY SPOUSE VISA IN MARCH 2010
MY ILR IS DUE IN MARCH 2012 JUST WANT TO KNOW IF I WILL HAVE TO SPEND ANY EXTRA TIME UNDER Probationary citizenship PERIOD BEFORE I APPLY FOR ILR IF YES THEN HOW LONG I WILL HAVE TO STAY UNDER Probationary citizenship PERIOD.

[joh118]

HI THERE MY SITUATION IS :

I CAME INTO UK AS A STUDENT IN 2005
I GOT MARRIED TO A BRITISH CITIZEN AND GOT MY SPOUSE VISA IN MARCH 2010
MY ILR IS DUE IN MARCH 2012 JUST WANT TO KNOW IF I WILL HAVE TO SPEND ANY EXTRA TIME UNDER Probationary citizenship PERIOD BEFORE I APPLY FOR ILR IF YES THEN HOW LONG I WILL HAVE TO STAY UNDER Probationary citizenship PERIOD.

Right now it is visa to ILR then Citizenship. From 2011 it will be visa to Probationary Citizenship then onto either ILR or Citizenship. There will be "Probationary citizenship"in between the route from visa to ILR/Citizenship, it is only AFTER you complete this that you are offered to move on to either ILR or citizenship.

It is not yet clear how long you have to spend in "Probationary Citizenship" however it depends on the type of route you are taking. The period will be different to applicants on the family, work or protection route. However, IT IS clear that this period wil bot be any longer than 5 years. If you do comunity service or volenteering and so on, this period can be cut shorter by 2 years. Therefire it is clear that this period will be longer than 2 years as 2 years is the amount of time that will be cut if you do community service. So, probably 3 or 4 years.

which means that if you are on the work route, assuming you have to stay on it for 5 years, it will take about 8 or 9 years for citizenship or 5 or 6 years for family. from getting the visa to getting citizenship.


After you complete this period will then only be allowed to move on to citizenship or ILR.

[Pierrot95]

It is not yet clear how long you have to spend in "Probationary Citizenship" however it depends on the type of route you are taking. The period will be different to applicants on the family, work or protection route. However, IT IS clear that this period wil bot be any longer than 5 years. If you do comunity service or volenteering and so on, this period can be cut shorter by 2 years. Therefire it is clear that this period will be longer than 2 years as 2 years is the amount of time that will be cut if you do community service. So, probably 3 or 4 years.

I don't know how you got this.
My understanding is that after your initial 2 years spouse visa (or 5 years work visa), you will move to Probationary Citizenship (PC) for a minimum of 1 year (for those doing community work) and a maximum of 3 years.
After your PC, you qualify for Citizenship. So you can still get Citizenship after 6 years on the work route (5 years visa + 1 year PC) or 3 years on the spouse route (2 years spouse visa + 1 year PC).
However if you want ILR (or Permanent Residency), you will have to spend the maximun period under PC (3 years). This will make ILR more difficult to get than Citizenship.

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[GETMEIN]

My understanding is that after your initial 2 years spouse visa (or 5 years work visa), you will move to Probationary Citizenship (PC) for a minimum of 1 year (for those doing community work) and a maximum of 3 years.
After your PC, you qualify for Citizenship. So you can still get Citizenship after 6 years on the work route (5 years visa + 1 year PC) or 3 years on the spouse route (2 years spouse visa + 1 year PC).
However if you want ILR (or Permanent Residency), you will have to spend the maximun period under PC (3 years). This will make ILR more difficult to get than Citizenship.

The first part is correct. 5 years WP/Tier 1/Tier 2/All tiers + 3 years PC (or 1 year PC if you do community work) = Citizenship.

Transitional period for HSMP pre Nov 2006:

5 years HSMP/Tier 1 but HSMP prior to Nov 2006 + 1 year ILR (even after July 2011 until Nov 2011) = Citizenship.

No ILR for any other category after July 2011 except HSMP pre Nov 2006.

This is all provided new rules come in to existence in July 2011.

Cheers

[sega1297]

My understanding is that after your initial 2 years spouse visa (or 5 years work visa), you will move to Probationary Citizenship (PC) for a minimum of 1 year (for those doing community work) and a maximum of 3 years.
After your PC, you qualify for Citizenship. So you can still get Citizenship after 6 years on the work route (5 years visa + 1 year PC) or 3 years on the spouse route (2 years spouse visa + 1 year PC).
However if you want ILR (or Permanent Residency), you will have to spend the maximun period under PC (3 years). This will make ILR more difficult to get than Citizenship.

The first part is correct. 5 years WP/Tier 1/Tier 2/All tiers + 3 years PC (or 1 year PC if you do community work) = Citizenship.

Transitional period for HSMP pre Nov 2006:

5 years HSMP/Tier 1 but HSMP prior to Nov 2006 + 1 year ILR (even after July 2011 until Nov 2011) = Citizenship.

No ILR for any other category after July 2011 except HSMP pre Nov 2006.

This is all provided new rules come in to existence in July 2011.

Cheers

[David12345]

The first part is correct. 5 years WP/Tier 1/Tier 2/All tiers + 3 years PC (or 1 year PC if you do community work) = Citizenship.

Transitional period for HSMP pre Nov 2006:

5 years HSMP/Tier 1 but HSMP prior to Nov 2006 + 1 year ILR (even after July 2011 until Nov 2011) = Citizenship.

No ILR for any other category after July 2011 except HSMP pre Nov 2006.

This is all provided new rules come in to existence in July 2011.

Cheers[/quote]

So 3 years after getting my spouse visa i'll be eligible to apply for permanent citizenship if i do community work is that right?

[Pierrot95]

No ILR for any other category after July 2011 except HSMP pre Nov 2006.

Are you sure about this? I think I read somewhere that after July 2011, ILR will be replaced by Permanent Residency (which is equivalent), and you will still have the option to apply for PR instead of Citizenship.

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[GETMEIN]

Are you sure about this? I think I read somewhere that after July 2011, ILR will be replaced by Permanent Residency (which is equivalent), and you will still have the option to apply for PR instead of Citizenship.

PR does not stand for Permanent residency. It means probationary citizenship which is longer route to get citizenship.

Thus, PR (3 YEARS OR 1 YEAR WITH COMMUNITY WORK) and then apply for citizenship.

HSMP prior to Nov 2006 are still allowed to apply for ILR even after rules come in to place in July 2011. Link has been provided in previous posts. They are protected by HSMP JR (HSMP judge ruling by HSMP forums Ltd).

Hope this helps.

[Pierrot95]

Are you sure about this? I think I read somewhere that after July 2011, ILR will be replaced by Permanent Residency (which is equivalent), and you will still have the option to apply for PR instead of Citizenship.

PR does not stand for Permanent residency. It means probationary citizenship which is longer route to get citizenship.

Thus, PR (3 YEARS OR 1 YEAR WITH COMMUNITY WORK) and then apply for citizenship.

HSMP prior to Nov 2006 are still allowed to apply for ILR even after rules come in to place in July 2011. Link has been provided in previous posts. They are protected by HSMP JR (HSMP judge ruling by HSMP forums Ltd).

Hope this helps.

I am not questionning the fact that HSMP JR will still get ILR after July 2011. I am saying that OTHER categories will still have the option to apply for Permanent Residency (PR, as I want to call it!). PR will become the new name of the current ILR and those who already have ILR will be deemed to have PR.
Check page 20 and page 27 (#157) of this document.

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[dimsav]

I am not questionning the fact that HSMP JR will still get ILR after July 2011. I am saying that OTHER categories will still have the option to apply for Permanent Residency (PR, as I want to call it!). PR will become the new name of the current ILR and those who already have ILR will be deemed to have PR.
Check page 20 and page 27 (#157) of this document.

Agree. Also, my understanding is that the concept of "probation/earned citizenship" applies to the "new" PBS migrants only (e.g. Tier 1/2, HSMP after Nov 2006, etc.). WP holders will be able to apply directly for settlement (ILR or PR) after 5 years as before, even after July 2011; see Transitional Arrangement A. However, the qualifying period for a citizenship will be 2 years in such a case.

Please, correct me if I am wrong (in my very first post here...)

[renzokuken]

Agree. Also, my understanding is that the concept of "probation/earned citizenship" applies to the "new" PBS migrants only (e.g. Tier 1/2, HSMP after Nov 2006, etc.). WP holders will be able to apply directly for settlement (ILR or PR) after 5 years as before, even after July 2011; see Transitional Arrangement A. However, the qualifying period for a citizenship will be 2 years in such a case.

Please, correct me if I am wrong (in my very first post here...)

This is new, I am not sure if WP holder can apply ILR after 5 years like the HSMP holder. Anyone can confirm this.

The other question, what happen if a person enter UK on WP, and switched to Tier-1 after Nov 2008. Are they eligible for ILR (after 5 year) post July 2011?

[Pierrot95]

Only those covered by HSMP JR will be eligible for ILR after July 2011 without going through Probationary Citizenship.
The Transitional Arrangements A say that (i) current WP holders can extend their stay in the Tier 2 category without meeting the points criteria and (ii) they can do this as far as they have not been in the UK for more than 5 years in WP + tier 2.

After spending 5 years in the UK, they will not get the benefit of these transitional arrangements anymore. This means that they will be expected to apply for settlement (the criteria of settlement post July 2011 being to go through PC first).

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[renzokuken]

Only those covered by HSMP JR will be eligible for ILR after July 2011 without going through Probationary Citizenship.
The Transitional Arrangements A say that (i) current WP holders can extend their stay in the Tier 2 category without meeting the points criteria and (ii) they can do this as far as they have not been in the UK for more than 5 years in WP + tier 2.

After spending 5 years in the UK, they will not get the benefit of these transitional arrangements anymore. This means that they will be expected to apply for settlement (the criteria of settlement post July 2011 being to go through PC first).

=======

Pierrot, this is also my understanding...thanks to clarify.

[dimsav]

Only those covered by HSMP JR will be eligible for ILR after July 2011 without going through Probationary Citizenship.
The Transitional Arrangements A say that (i) current WP holders can extend their stay in the Tier 2 category without meeting the points criteria and (ii) they can do this as far as they have not been in the UK for more than 5 years in WP + tier 2.

What about those who didn't switch to Tier 2, but hold WP and would currently qualify for ILR in July 2011?
This question is vital for me, as I am the one (WP 1/08/06 - 1/08/11)...

Here it is stated that "If you have been in the UK for five years as a work permit holder and/or in another relevant category, you can apply to settle permanently in the UK." This seems to be confirmed by Immigration Rules, see Rule 134 of Part 5. "Settle" here means ILR/PR, with no further mentioning (of a PC or whatever).

However, Tier 2(1) it is a different story/route, which is regulated by Part 6A of Immigration Rules with different qualifying criteria. How will earned citizenship work says explicitly that it will apply "for highly skilled and skilled workers who are in the UK under Tiers 1 and 2 of the points-based system". WP is not the PBS, hence, should not be affected.

Gurus, please comment...

[Pierrot95]

I see where you are coming from. Maybe you didn't follow the whole debate about HSMP JR, and why WP JR wasn't successfull.

Basically, unless stated otherwise, you will have to meet the settlement criteria at the time of application. And post July 2011, the criteria for settlement will be through PC.

[dimsav]

I see where you are coming from. Maybe you didn't follow the whole debate about HSMP JR, and why WP JR wasn't successfull.

Thanks for useful feedback, Pierrot. I didn't follow the whole debate about HSMP JR at that time but have done some reading afterwards. My understanding is, essentially, that HSMP Forum JR has got back their rights:
(i) for those applied before 3 April 2006 to apply for ILR after 4 years with no language criteria (KOL test) imposed; and
(ii) for those applied between 3 April and 7 November 2006 to have no KOL required but to apply for ILR after 5 years though.
However, those HSMPs applied after 7 November 2006 are not covered by this JR and will need to pass KOL test, though still eligible for ILR after the same 5 years.

Of course, this was before the Immigration Bill July 2009 in question... Now comes EITHER

Basically, unless stated otherwise, you will have to meet the settlement criteria at the time of application.

OR... if stated explicitly, you will have to meet the settlement criteria at the time of application, - this is the question (at least for me).

What I mean is this:
-- Settlement for Tier 2 does contain explicit mentioning that "The immigration rules may change and you must meet the rules that are in place at the time that you apply for settlement." ...which is according to paragraphs 245ZH of Part 6A.
-- Work permit section does not contain anything like that, stating just "If you have been in the UK for five years as a work permit holder and/or in another relevant category, you can apply to settle permanently in the UK." ... which is according to paragraphs 134 of Part 5. Likewise, requirements for Settlement as a HSMP have no mentioning of any "rules in places", being as per 135G of Part 5. Note also that these two (old) categories are regulated by the same Part 5, while Tier 2/1/ets are by Part 6A.

And post July 2011, the criteria for settlement will be through PC.

Why?.. From the above, it looks to me that there will be two quite different routes to a settlement after July 2011:
(1) PBS migrants - Tier 1/2/etc - may generally apply to ILR/PR via a probation citizenship (PC), unless they are subject to some transitional arrangements (a-la HSMP JR);
(2) non-PBS migrants - WP holders - may apply directly for ILR/PR after 5 years.

Where is a catch?...

[Pierrot95]

Where is a catch?...

However, those HSMPs applied after 7 November 2006 are not covered by this JR and will need to pass KOL test, though still eligible for ILR after the same 5 years.

This is not true. If you read the Transitional arrangements for earned citizenship it is said that:

The government will continue to meet its obligations to migrants who entered the United Kingdom on the Highly Skilled Migrant Programme (HSMP) AND had a legitimate expectation that they would be able to apply for and be granted indefinite leave to remain, in accordance with the Immigration Rules that were in place when they applied to the HSMP

The key of the HSMP JR debate was about what is seen as a legitimate expectation. From the Government perspective, HSMP post Nov 06 don't have that legitimate expectation because it was mentionned on their application form that they will have to meet the criteria in place at the time of their ILR application. Only HSMP pre-Nov 06 have that legitimate expectation. WP holders have never been considered to have that legitimate expectation at all. Go figure out why.
Don't waste your time looking for the reason in the legislation because it is not there. I had the same impression as you, that WP holders should be eligible for ILR after 5 years, as it was even mentionned on the WP document.
It seems that there was a leaflet explaining the HSMP scheme when it was introduced, explicitly saying that their right to apply for ILR after 4 years will not be affected by future changes in the immigration rules. If you can find something similar for WP, maybe you can make a case.

I understand how frustrating your personal situation is, but you can still hope that the Government might start on 6 July 2011 so you can apply for ILR on the 3rd using the 28 days rule. Also remember that during Probationary Citizenship, you will be free to change employment so it is far better than WP.

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[dimsav]

I see your point, Pierrot. My remark regarding HSMP post Nov 06 referred to the time of JR decision (April 2009). Later, they indeed get effectively covered by JR from the changes of July 2009 in a sense that HSMP post Nov 06 will still be eligible to apply for ILR after 5 years but need to pass KOL test (which pre-Nov-06 don't). This all is already documented in paragraph 135G, Part 5 of Immigration Rules.

I think that we should finally refer to Immigration Rules, as this is the only trustworthy document regulating the immigration law. UKBA says that it has "a consolidated version of the current Immigration Rules. Any changes to this version will be highlighted in italic text for 28 days after the change takes effect. ... The Immigration Rules were last updated in April 2010." So, all the changes must be already there...

Don't waste your time looking for the reason in the legislation because it is not there. I had the same impression as you, that WP holders should be eligible for ILR after 5 years, as it was even mentionned on the WP document.

Did you try to get any legal advice that would formally confirm this?
Currently, paragraph 134, Part 5 of Immigration Rules, states that ILR for a WP holder may be granted after 5 years (with other obvious provisions)...

You also mentioned in the other post that WP JR failed (why is still not clear for me). There seems to be the second attempt in action, see Immigrant Welfare.

I understand how frustrating your personal situation is, but you can still hope that the Government might start on 6 July 2011 so you can apply for ILR on the 3rd using the 28 days rule...

Even worse... I entered the UK on 5 Aug 2006, so will be eligible to apply for ILR only on 7 July 2011. A lottery which I would prefer not to play...

[Pierrot95]

I think that we should finally refer to Immigration Rules, as this is the only trustworthy document regulating the immigration law.

I am not sure you got my point. You are referring to the current immigration rules. You are talking about how HSMP and WP may apply for ILR now. There is no problem with this. 5 years for HSMP, 5 years for WP, then ILR if you apply now. By the way, I can't see in paragraph 135G anything suggesting that HSMP post Nov 06 will be able to apply for ILR after July 2011 without meeting the requirements that will be in place then.
The issue is about how the government deals with changes in the rules. The Paragraph 135G you are quoting is a good example of how absurd the system is, because it is impossible for any HSMP post Nov 06 to make use of it. In Nov 2011 when the finish 5 years stay in the UK, that paragraph will have been deleted from the immigration rules.

I am afraid you can't just rely on the current immigration rules. You also need to look at the principles behind the rules. The government has made clear that

The immigration rules are subject to change and you must meet the rules that are in place at the time that you apply for settlement.

This is repeated in all the Settlement sections of the UKBA website.

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[dimsav]

You are right that I am referring to the current immigration rules, and I do understand this. My logics behind is that Immigration Act 2009 received Royal Assent on 21 July 2009, if so it has become a law now. Therefore, Immigration Rules should have been properly amended... if not now then when? Well, if it is only going to be done "closer to July 2011" in who-knows-which-form then it is really bad news, at least for now... (Any hope for Tory, if they win?...)

The Paragraph 135G you are quoting is a good example of how absurd the system is, because it is impossible for any HSMP post Nov 06 to make use of it. In Nov 2011 when the finish 5 years stay in the UK, that paragraph will have been deleted from the immigration rules.

In my view this need not be deleted, as it would just work in its currently written form. For those HSMPs switched to Tier 1, Part 6A seems to also contain some proper referencing either to HSMP JR or to Appendix D (with HSMP rules at Feb 2008).

The government has made clear that

The immigration rules are subject to change and you must meet the rules that are in place at the time that you apply for settlement.

This is repeated in all the Settlement sections of the UKBA website.

No, not in all the settlement sections: Tier 1 and 2 do contain this statement explicitly, while HSMP and WP don't - see my previous post above. Settling in the UK on the other hand states only that "Your right to apply for settlement will depend on your current immigration category." Reading the corresponding section(s) leads to spotting the differences discussed above. Something doesn't match... maybe there is a way out, somehow?

Thanks again for your time and useful feedback, Pierrot!

[Pierrot95]

My logics behind is that Immigration Act 2009 received Royal Assent on 21 July 2009, if so it has become a law now. Therefore, Immigration Rules should have been properly amended... if not now then when? Well, if it is only going to be done "closer to July 2011" in who-knows-which-form then it is really bad news, at least for now... (Any hope for Tory, if they win?...)

Again you need to put this into his historical context. The July 2011 implementation date was a result of a difficult compromise.

To make a long story short, initially the government intended to change the rules (almost) immediately. But some MPs raised the issue of its retospective effect, which is clearly unfair. They wanted the government to introduce amendements in the new law to guarantee that people already in the UK will be able to apply for ILR under current rules. The government argued that it was its right to change the rules, that immigration rules are subject to change, and that it would be very difficult to manage a system with different rules for different people, depending on their entry date.
They finally conceded that, in order to allow most people already in the UK to apply for ILR under current rules, they will delay the implementation of the new law by 2 years. Instead of clearly addressing the unfairness issue, they just put an arbitrary cut-off date. You may find archives of the debate on the Parliament website.

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[dimsav]

I have just called UKBA Immigration enquiry bureau (0870 606 7766) and asked if a settlement for WP holders will be affected by new rules after July 2011.

The answer was that UKBA haven't been heard about any changes in WP qualifying period for a settlement in near future. The lady (quite friendly) said that any increase (in view of an additional PC) would be a major issue but they haven't got any training regarding this. She admitted though, that they will do what the government tells them to do, and also when (so, possible retroactive changes are, unfortunately, confirmed). It looks like the case is not decided yet...

[Pierrot95]

The answer was that UKBA haven't been heard about any changes in WP qualifying period for a settlement in near future. The lady (quite friendly) said that any increase (in view of an additional PC) would be a major issue but they haven't got any training regarding this. She admitted though, that they will do what the government tells them to do, and also when (so, possible retroactive changes are, unfortunately, confirmed). It looks like the case is not decided yet...

If my understanding is right, you are expecting that WP holders will continue to apply for ILR after July 2011 under current rules? I would love to live in your dreamed world.
I remember how the Immigration minister vigorously opposed any suggestion to safeguard the rights of current migrants. Even the July 2011 concession was made verbally. He refused to put this in the legislation.
Honestly, the only hope you can have now is that the implementation may be delayed further due to some material difficulties, for instance the time to train their staff.
All the best.

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[dimsav]

My previous post on IEB enquiry was just a narrative intended to keep this forum informed on current instructions in UKBA on WP holders in view of July 2011 changes. It was not an intention to give any (false) hopes to WP holders, just a fact that currently UKBA refused to admit/comment any changes in near future. This is likely because of them being instructed to advice on the current legislation only. Then such a situation will probably last until an exact date of new rule implementations will be finally settled...

Do you think, is it reasonable to approach an immigration lawyer now, or they might refuse to comment on the same grounds?

[manenoor]

Im on same boat. Completing 5 year on WP in Nov 2011. This discussion thread is very informative.

Initially I was thinking new law will not effect a lot as if you qualify you can still get citizenship in 6 years. However, after reading various posts it seems rules will be very tight and no one know "actual" criteria yet.