Graduate Student in Scotland, Am I qaulify for ILR?

[dj.akin]

referring to posting (Mon Jan 24, 2011 1:12 pm) about the subject above, can I refer to the immigration rules:
(http://www.ukba.homeoffice.gov.uk/polic ... les/part5/),
para. 128 – 134 state the link between a work permit holder and indefinite leave to remain (ILR). In paragraph 131H, FTWISS is mentioned under this work permit section; if this is true, it fulfils the requirement for ILR under para. 134 which states
"Indefinite leave to remain may be granted on application to a person provided:


(i) he has spent a continuous period of 5 years lawfully in the UK, of which the most recent period must have been spent with leave as a work permit holder (under paragraphs 128 to 133 of these rules), and the remainder must be any combination of leave as a work permit holder or leave as a highly skilled migrant (under paragraphs 135A to 135F of these rules)......."

So, the question are:

1.Can FTWISS be conclued/argued to be a work permit since the rules governing it is found in work permit rules (part 5 on the rules)?

2. If yes, then can it be argued/concluded that it fulfils the requirement for ILR as stated in paragrah 134


Also, can I refer you to a page on the UK border agency website; (link: http://bia.homeoffice.gov.uk/workingintheuk/tier1/)

under the subheading: "Schemes that closed on 29 June 2008" it says:
Schemes that closed on 29 June 2008
The schemes listed below closed on 29 June 2008. If you currently have permission to stay in the UK under one of these categories and you want to extend your stay, you must apply under one of the categories shown above.

If you have been in the UK for five years or more under one of these categories, you may be able to apply to settle permanently in the UK. For more information, select your current immigration category from the list below.

Highly Skilled Migrant Programme
Highly Skilled Migrant Programme
Business persons
Fresh Talent: Working in Scotland
Innovators
International Graduates Scheme
Investors
Writers, composers and artists


Now by listing FTWISS in the list it tends to give the impression that it counts towards the qualifying period to ILR.

What are you comments on these?
Akin

[genorp]

The Fresh Talent: Working in Scotland scheme does not lead to settlement, nor will leave granted under this scheme count towards the qualifying period for settlement in other employment or business routes.

From the Immigration Directorates' Instructions, Chapter 5, Section 14, that describes that programme.


http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

You can't get more black and white than that.

[hsmpengineer]

Not a chance mate...chances are as soon as the case worker sees that FTWISS on your application, if you have already paid at that time consider your £1,350 gone....

[dj.akin]

I think there is some kind of bias since the FTWISS is for Scotland and not for England or the rest of UK, so many people even lawyers just go back the statement in the IDI that it does not count as a qualifying period to ILR, whereas, part 5, paragraphs 131H and 134of the immigration rules suggest it does.

Section 7, fifth paragraph of the same IDI states:

"The Immigration Rules only enable Fresh Talent: Working in Scotland scheme participants to switch into leave as a work permit holder where they hold a valid work permit for employment in Scotland"

The key phrase there is "valid work permit for employment in Scotland". By saying "work permit" for employment in Scotland, it can only mean FTWISS as this is the only work permit visa for Scotland and the rules for it is included in PART 5 of the immigration rules.

so by not regarding it as a work permit by the Home office and many immigration lawyers in England is absolutely baffling.

also, section 11 of the IDI states:

The Fresh Talent: Working in Scotland scheme is not a category which leads to settlement.

There are no provisions for participants to be granted settlement on the basis of the scheme, although it may of course be granted if particpants qualify under another category of the Rules or under a concession.

If a Fresh Talent: Working in Scotland scheme participant subsequently switches into leave in a category which does not lead to settlement, then the period of leave spent as a Fresh Talent: Working in Scotland scheme participant will not count towards the qualifying period for settlement in that category. This will be the case regardless of what employment or self-employment the individual has carried out during their leave as a participant in the Fresh Talent: Working in Scotland scheme.

But it remained silent on the fact that if the participant switches to the category that leads to settlement, what happens then.

There is no precedence for a case like this that is why there is huge confusion. The same was the case of maintenance requirement for the PBS system where many were refused becos they don't have £800 balance in the bank acct for a rolling 3months, and many lawyers were saying sorry, no hope till the issue was challenged and defeated in the Pakina et al VS secretary of state case in 2010

[Greenie]

FTWISS is not leave as a work permit holder under paras 128-133. It was leave granted under paras 143A-143F. It is mentioned in para 131H only in the context of how a FTWISS participant can switch into leave as a work permit holder. It does not mean therefore that a FTWISS participant was a work permit holder during his time on the FTWISS, just like the existance of 131A doesn't make a student who switched to a work permit holder a work permit holder for his duration of time as a student.

If you want to go ahead and apply for ILR, and argue your point, go ahead. We will look out for dj.akin v SSHD.

[dj.akin]

After checking the rules again, I absolutely agree with you, Greenie. by referring me to 131A, i found that i interpreted the 131H wrongly. FTWISS is NOT a work permit.

Thanks

[dj.akin]

Hi Vinny,

1.Does the time spent as student (entry clearance or Leave to Remain) counts towards the 10 years long residence?

2. Is it true that spouse and children (dependants) cannot be included in the 10 years long residence applications?

Thanks
Dj

[geriatrix]

1. Yes.
2. Yes.