UK High Court judgment - British Government ordered to honour its commitments made to Highly Skilled Migrants
HSMP Forum (UK) Limited Vs Secretary of State for the Home Department
HSMP Forum, a not for profit organisation campaigning for interests of Skilled Migrants in UK, hailed another landmark victory at UK High Court on April 6, 2009. The judgment directs British government to honour its original commitments made to participants of Highly Skilled Migrant Programme.
In October 2008, HSMP Forum filed a Judicial Review application which challenged the Home Office on changes to the terms of settlement for the participants of Highly Skilled Migrant Programme. Notable among the changes to these terms was increase of qualifying period for settlement from 4 years to 5 years.
It is an irony that the UK government has once again got its priorities wrong. Instead of addressing the issue of illegal and burdensome immigration, government has been penalising the legal and desirable section of Highly Skilled Migrants, who are making a valuable contribution to UK economy by offering requisite skills, paying all the taxes and at the same time not availing public funds.
April 2008 Sir George Newman in his Judgment stated “I am satisfied that the terms of the original scheme should be honoured and that there is no good reason why those already on the scheme shall not enjoy the benefits of it as originally offered to them.”1 Sir Newman’s judgment clearly implied that Highly Skilled Migrants who were admitted in the HSMP scheme up to November 2006 should be able to obtain settlement as per the criteria or terms which existed at the date they joined the HSMP scheme.
A second Judicial Review was filed after the Home Office refused to make amendments to the settlement criteria for Highly Skilled Migrants in its 9th July 2008 Policy Document, which was supposed to implement the HSMP Forum’s April 2008 Judicial Review Judgment.2
Mrs JUSTICE COX DBE in her Judgment today at the high court observed ““The ratio of the decision, in my view, is clear. It was a substantive, legitimate expectation of all those on the HSMP that they would enjoy the benefits of the programme, as they were at the time they joined it. If the judge had been seeking to identify a narrower, legitimate expectation he would have said so.” She further said “....the existence in this case, as I find, of a substantive, legitimate expectation that the terms on which you joined the HSMP would be the terms on which you qualified for settlement.”
She acknowledged the hardships being faced by the HSMP members due to the delay in settlement, she said “Quite apart from the psychological and emotional impact described, there are references, for example, to financial difficulties caused because of the inability to secure a competitive mortgage without indefinite leave to remain; a continuing lack of good employment or promotional opportunities without indefinite leave; an inability to comply with the travel requirements of employment, due to the scheme restrictions on travel abroad or the need for visas, with consequential career setbacks and affects on CVs; and the necessity now to pay overseas students’ fees for the entirety of the course, for children who were due to start their university courses here after 4 years’ continuous residence and the attainment of settlement. The submission on behalf of the Defendant that there has been no negative impact as a result of the change fails to have regard to the practical realities of people’s private and professional lives and is, in my view, unsustainable.”
She further stated “Like Sir George Newman before me, I too am unable to identify a sufficient public interest which justifies a departure from the requirement of good administration and straight forward dealing with the public, or which outweighs the unfairness that the increase in the qualifying period visits upon those already admitted under the scheme.” “...it would be unlawful for the Secretary of State to withhold indefinite leave to remain from all those members of the HSMP who were already on the scheme before the 3 April 2006, by reference to a qualifying period of 5 years continuous residence. In the circumstances, since the policy of 9 July 2008 does not so provide, it is unlawful and the Court should intervene.”
Amit Kapadia, Executive Director of HSMP Forum expressed his satisfaction on the outcome of the legal challenge, which was initiated after pursuing the Border and Immigration Agency to make provision in the July 2009 policy document for those migrants who were admitted in the HSMP scheme before April 2006 to obtain settlement after 4 years. He said “Government’s decision to ignore these representations made by HSMP Forum lead to the legal challenge, which means that the taxpayer will pay the costs of tens of thousands of pounds towards legal proceedings. The Home Office’s continued attempts to apply policies which cannot withstand legal scrutiny only suggests that there is a dearth of skilled policy makers and Ministers. HSMP Forum hopes that the Home Office will learn its lessons and avoid a repetition of applying such unlawful retrospective legislations in the future.”