Applying for HSMP while WHM Decision still pending

[netfinity]

Hello,

I would like to know if i could apply for HSMP inspite of getting rejected for the WHM visa in Nov. 2003 [Appeal filed in Dec. 2003, Decision still pending]

I have received double opinions from several consultants regarding this issue. Some say both are completely unrelated where as some people
have the idea that the high commission wont accept the application as
a decision is pending on a previously made application.

Please advice asap.

Regards,

Nimesh Dani

[Kayalami]

Nimesh Dani,

Yes you can apply for the HSMP scheme concurrent to the appeal although knowing the WHM refusal reasons would help formulate a more complete answer. The HSMP scheme is a two stage process for first time applicants.

1. Apply for HSMP approval to HSMP Team in Doncaster, UK.

2. After you obtain HSMP approval letter

a) apply for Entry Clearance i.e. HSMP visa if an overseas applicant or

b) if an 'in country' applicant apply for a change in visa status to HSMP by applying to the Home Office Leave To Remain Team/Department.

The advantage of an HSMP EC/visa application is that you do not have to prove that you will eventually return home after a temporary residence in the UK. This is because the HSMP is an immigration category leading to settlement aka permanent residence in the UK. This 'intent to depart the UK' is very subjective and its virtually impossible to satisfy the Entry Clearance Officer because it is based on ties to your country including but not restricted to family, employment, property etc.

Once your HSMP visa is issued your appeal is actually invalidated under the Nationality, Immigration & Asylum Act 2002 because you will now have leave (permission) to enter the UK. The appeal will be formally classed as dismissed on the date you physically enter the UK. IMHO the WHM appeal will not be listed before Dec 2004 so don't have any high hopes with it as a route to enter the UK especially if you will age out by the time its decided.

Refusal of an HSMP EC/Visa makes it more likely that future applications to enter the UK in a category that does not lead to settlement such as a visitor or WHM will be refused because you have shown intent to live in the UK permanently. This will of course be included in the appeal bundle by the Home Office as further evidence of their refusal to grant you a WHM if one of their reasons was that 'they do not believe you will depart the UK after completion of your WHM'

Hope that clarifies things further.

[netfinity]

Thanks a lot for the exhaustive description of the law. I appreciate your help.

I would just like to elaborate my case so that you have a very clear idea.

I had applied my family (myself, wife and 1 yr kid) for the WHM and had a strong sponsor letter and strong finanical standing evidence from my wife's cousin in UK (i thought of getting this as a means to prove that i would not be dependent on the government in any way under any circumstances).

Furthermore i had a confirmed job letter on arrival in the UK (to demonstrate intent to work). My wife had also indicated intent to work in the visa application form. The immigration officer questioned us as to how
we would accomodate the needs of the child and attend to her if both of us would be working. In reply to this, i said that my wife would work part-time and in accordance with the needs of the child. This i think did not satisfy the officer.

The reason of rejection that is printed on the reason sheet given is :

: We do not think that you intend to work in the UK during your working holiday

: We do not think that you intend to return to your country (INDIA) at the end of the working holiday.

This was it! Yes i agree that the appeal under WHM would be dismissed if we got the HSMP visa, but i hope that they will ACCEPT the HSMP Application EVEN IF the APPEAL is PENDING. This was my main doubt.

Also, again now that the basis of reasoning is completely opposite, would it be right for me to apply under HSMP. Under WHM we tried to show that we will return to our country. On the contrary under HSMP it is evident that we want to have permanent residence in the UK.....Wouldnt this prove myself as a untruthful applicant making contrary assertions?

Also do HSMP applications go to Sheffield or Doncaster?

Kindly base your answers and opinions keeping in mind that i am from INDIA....just in case if there is something country specific.

Thanks again. Looking forward to your reply.

Regards,

Nimesh Dani