The rules of the Highly Skilled Migrant Programme (HSMP) changed on 7 November 2006. The HSMP is a flexible and popular immigration programme, under which successful applicants may come to the UK to seek and take up work on an employed or self-employed basis.
Q What are the main changes?
Successful applicants must now score at least 75 points.
The criteria against which points are awarded have also changed. Points are now available for:
Past earnings: dependent on how much, when and where it was earned
Age: under 27 = 20 points, 28 or 29 = 10 points, 30 or 31 = 5 points
UK experience: five extra points for scoring earnings points for UK earnings or a year’s degree-level study at a UK-based institution
Qualifications: BA, BSc = 30 points, MA = 35pts, PhD = 50pts, eligible MBA = 75pts.
Points are no longer available for:
Achievement in the applicant’s chosen field
Partner’s achievements, and
Priority points for GPs.
Proof of English language ability is now mandatory.
Q What about applications to extend existing HSMP approval?
A Requirements for extending HSMP approval have also changed. The new test is more rigorous. Extension applicants will be assessed against a points system similar to the test for initial applications. Evidence of English language ability is also required.
This applies even if the initial application was approved under previous rules.
Q When do the changes take effect?
A The new rules apply to all initial and extension HSMP applications lodged after 5pm on 7 November 2006. Applications received before this time (and ensuing review applications) will be considered by reference to the former rules.
The HSMP is suspended until 4 December 2006. The Home Office has suggested that applications submitted after 5 December will take priority over applications submitted during the suspension period. However, applicants who are currently in the UK (perhaps under the HSMP and applying for an extension, or in some other category that permits switching onto the HSMP) should lodge their applications before their current approval expires.
Q What if an HSMP employee no longer qualifies?
A Employees who received approval under the HSMP scheme prior to 8 November 2006 may continue to work as normal until the expiry of their existing leave. This date should be diarised as it may be a criminal offence to employ beyond that date.
Transitional arrangements apply to HSMP employees, making it easier for those who no longer qualify to switch into work permit employment. HSMP employees may also be able to aggregate HSMP time with time spent in the UK in other categories, to qualify for indefinite leave to remain.
Employers of HSMP employees should reassess ability to qualify for an extension of stay as soon as possible. This will allow time to take the English language test, to consider alternative immigration routes and, if no lawful alternative, to commence a proper dismissal process and make recruitment plans. As immigration rules are subject to change at short notice, it is unwise to make a decision to dismiss on those rules until shortly before the existing HSMP approval expires.
Q What proof is required to demonstrate English language ability?
A All applicants, even native speakers of English, need to submit such proof.
This may be an original certificate for a bachelors degree that was taught in English (not a masters or PhD degree), together with an original letter from the awarding body confirming the applicant’s name, qualification obtained, date of qualification, and stating whether or not the course was taught in English.
An alternative option is an IELTS (International English Language Testing System) Test Report Form at level 6 or above, but this must be no more than two years old.
In some circumstances, it may be sufficient to submit an original certificate for an English language qualification that is equivalent to IELTS level 6.
Q Are further changes to the immigration rules expected?
A Yes. Changes for work permit applications in the hotel, catering and care sectors took effect from 27 November 2006.
As illustrated by the recent HSMP changes, immigration rules are subject to alteration at much shorter notice than most employment laws.
Earlier this year, the government announced plans for a points-based system for all work and study migration routes to the UK to be in place by April 2009. Meanwhile, David Cameron has announced the Conservative Party’s plans to limit immigration. Significant changes seem to be inevitable.
By Anne-Marie Balfour, solicitor, Speechly Bircham