HSMP FORUM LTD CELEBRATES COURT VICTORY

The Highly Skilled Migrants living across the United Kingdom gathered at Warwick, Picadilly Circus in London on 18th April to celebrate the victory of the HSMP on the issue of ILR from 5 to 4 year.

The High Court on April 6 declared the Home Office's decision to increase the ILR period from 4 to 5 year as "unlawful."

Present at the programme were a large number of HSMP immigrants including Amit Kapadia, Executive Director of the HSMP Forum Limited, which initiated the case against the Home Office not to implement rules "retrospectively."

Participants from London, South East, Reading, Farnborough, Plumstead and other parts of the UK had gathered to celebrate the court victory.

The participants of the court victory celebration applauded the court verdict. There was remarkable presence of the Nepalese HSMP migrants, who played significant role to support the HSMP Forum Limited during the case.

In a verdict on April 6, justice Mrs Cox DBE had said: "I conclude, therefore, that 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."

UK government has retrospectively changed the HSMP rules since it began in 2003. The HSMP migrants had also won the case last year.

All the retrospective changes were nullified by the court. However, the Home Office refused the visa of those immigrants who had applied for Indefinite Leave to Remain in the UK after completing 4 years.

"The justice said:"It was made clear during the hearing, as I have already stated, that the Secretary of State accepts that it is necessary to deal with the individuals who were members of the scheme before April 2006. She accepts too that no individuals should be disadvantaged in relation to being removed from the UK and in relation to being asked to pay an additional fee. However, in my judgment, the proposed policy referred to in the letter of 19 February 2009 does not go far enough, for the reasons I have given."

After the court verdict, Amit Kapadia, Executive Director of HSMP Forum had 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 2008 policy document for those migrants who were admitted in the HSMP scheme before April 2006 to obtain settlement after 4 years.

Mr Kapadia had 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.”

NEW YEAR CELEBRATION IN UK

Nepalese living in various parts of the United Kingdom have welcomed the New Year 2066 organising various cultural and social programmes wishing for peace, progress and prosperity in Nepal.

Greater Reading Nepalese Community Association (GRNCA) organised a get together at Community Hall in London Road to mark the occasion just two days before the New Year 2066.

A large number of Nepalese living in Reading, London and surrounding areas attended the programme which continued for more than 6 hours.

Nepalese traditional dance representing various ethnic communities of Nepal, Nepali folk, modern and pop songs were sung by Nepalese artiste on the occasion.

Small children, students, youths and elderly people all joined hand together to celebrate the New Year. Bhajan was recited by Dipak Chalise and Krishna Neupane read out poem wishing the environment of peace, consolidation of democracy and economic prosperity of Nepal at the programme.

Traditional Nepali foods were served and dance continued until midnight. The attraction of the programme was that some UK nationals were present in Daura Suruwal and cap, Nepali national dress.

GRNCA also felicitated Dr Sitaram Basnet, who has completed PhD on gender issue of Nepal, from the University of Reading this year.

Speaking on the occasion, president of the GRNCA Mahesh Gurung wished that the New Year will be a year of peace and democracy in Nepal. He stressed the need of unity among the Nepalese living in the United Kingdom.

General Secretary of the GRNCA Kirti Pant and artistes Bhimsen Khadka, Pushpa Dahal, Rubin Shrestha among others presented their views and songs on the occasion. It is estimated that about 5,000 Nepalese mostly ex Gurkhas, highly skilled migrants and students live in Greater Reading area.

Similarly, a programme was organised by Yeti Association in Alperton, London. A large number of Nepalese living in various parts of the UK including officiating ambassador Jhabindra Aryal, president of the NRN UK Dambar Ghale and representatives of various political, cultural and ethnic organisations attended the programme.

A disgruntled group led by Umesh Moktan, who was defeated in the election of Yeti Association last year, staged a peaceful demonstration with placards outside the venue demanding the fair review of the election.

Likewise, Nepalese Nursing Association, UK organised a cultural programme on the eve of the New Year at Copland School, Wembley, and London. Nearly 500 people attended the attractive cultural programme. There are a large number of Nurses working in the United Kingdom.

Singers Om Pradhan, Sarmila Bardewa and a host of others presented the songs amidst the dancing of youths on the occasion. There are reports of celebration of the New Year in Farnborough, Folkestone, Plumstead, London, Richmond, North Yorkshire, Manchester, Peterborough, Aldershot, Swindon, Maidstone, Scotland and other parts.

The exact figures of the Nepalese is not available, it is estimated that around 100,000 Nepalese live in various parts of the United Kingdom and most of them are ex Gurkhas, students, highly skilled migrants, doctors and nurses.

News by Chiranjibi Paudyal
Photos by Ashish Rijal

WHY DOES THE UK CHANGE IMMIGRATION RULE TIME AND AGAIN?

What will be the image of UK government when the highly skilled migrants have to knock the door of the court to get justice each and everytime?

The skilled migrants, who have made significant contributions in their fields of expertise, were issued visa only after fulfiling the criteria set by the Home Office.

The frequent change of HSMP rules since it was introduced in 2003 has not only created problems to the highly skilled migrants and their family members but also raised question about the motive of the UK government and degraded its image.

Everyone knows that the government has the right and authority to amend rules in accordance with its needs and interests but no one understands why such rules are being promulgated retrospectively.

Look at the immigration rules of the USA government. How many times have they changed? They even provide visa selecting through lottery process. But they don’t need to change it for years.

What has Canada done? They have the same provision for many years. The same point basis. 67 points are counted based on educational qualification, work experience, Canada work experience or qualification and relatives living in Canada. That is there for many years. Any one can get permanent residency after completing 3 years. No change at all.

Australia and New Zealand have also the same system. There is no frequent change in immigration rules. At least the change does not apply retrospectively.

United Kingdom says that it has followed the Australian point based system. But it does the opposite. Each and every time we have to knock the door of the court to get justice. Why does UK try to implement the rules retrospectively? Why does the government spend tax payers’ money to penalise the highly skilled migrants?

Either the imperial mentality has not gone or they want to befool the whole world.
The HSMP Forum Ltd said in a statement: “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 penalizing 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.”

In the words of Amit Kapadia, Director of the HSMP Forum Ltd, is the lack of sensitivity of the issue. In a press release issued after the court verdict on April 6 , Mr. Kapadia said: “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.”

It seems that the officials do not know the meaning of justice. The meaning of “Justice” is only for the definition of the judge. What an irony!
We have experienced that it is difficult to get job without ILR, there is problem for mortgage, have to pay international fee for children and there is uncertainty. Then what is the use of extending visa paying so much when the government changes the goal post at its wish trying to make us us all fool. It should be understood that the highly skilled migrants have wealth of experience, skills and knowledge that can be utilised for the economic development of the UK at a time the country is passing through a difficult time of recession.

Laughable joke

The Home Office recently refused visa to the spouse of one of the HSMP friend. The reason was if they were husband and wife then why they had not lived together so long? The difficult question is: “And how can they justify that they are husband and wife?”

What a silly question! Even a child understands that how can they live together when they do not issue visa to the wife.

When all the documents show that they have married, they have a daughter, they share property and have lived together so many years. All documents show that they are wife and husband.

And how can they be together when the visa is rejected? When the Home Office does not trust the documents then it can verify. But how can you prove that you are husband and wife when you don’t trust the evidence and documents?

The friend said in a light manner: “Is there anything that can prove that we are husband and wife except showing the video clips?” “Shall I show them the video clip of our relations?” It is a genuine question. The ultimate evidence that can prove the relationship.

Is that acceptable? Even if it is acceptable to the visa officer, it is not acceptable to others. Where has this society moved for?

If such a question was asked by an authoritarian state then it could be accepted as that happens in that system. But it is being happened in the country of rule of law. In the country of mother of democracy.

After seeing all these injustice game, I asked my Professor, a renowned journalist, who insisted me to apply for the HSMP when I had no idea about the provision. He was insisting me to be in the UK as there was censorship in Nepal after the takeover by Gyanendra.

“Your home office says this and that and brings out rules retrospectively so your advice to apply for the HSMP was wrong,” I asked. His answer was similar to that of the HSMP Forum Ltd. “There is a dearth of skilled policy makers.” Unanimous answer.

My own experience is also the same. It was not necessary to present video clips like my friend has- to prove the relationship with his wife but I had to present my other documents time and again.

When I applied for the HSMP 3 years ago, my application was refused saying that my Nepal’s MA degree in English literature was not recognized in the United Kingdom. I was accepted as a PhD student by the University of Westminster because I had already completed MA degree, and I had several years' work experience in teaching, media and communication.

I had taught English and journalism, worked as the chief editor of state run news agency, became correspondent of Indian newspaper, news agency, American news agency and UNDP. I also worked as a media and political advisor of the ambassador of a major donor country.

I had accompanied the Prime Minister and King during their visit to foreign countries and covered interenational news events, attended seminars and conferences held in various countries around the globe. But they were asking me about my certificate of Nepal.

I had also presented my MA degree in International Journalism certificate of the UK University. But they were asking me about my qualification! What a joke!
Then I had flooded all the documents including NARIC recognition of Nepal’s degree, published articles including in the Guardian, Times, Washington Post, New York Times and so on. I also referred many websites where my articles were published and my photographs shaking hands with Prince Charles and late Princess Diana during their visit to Nepal.

I did not present the photo taken with Nelson Mandela thinking that they would not recognize Mandela as it is a celebrity obsessed country where there is no meaning of reality and quality.

Why UK when there is injustice?

It is the choice of individual. Many people find it easy to be here as nearly 6 dozen countries are under the common wealth so they may have some amenities. For others, because it is centrally located, the value of pound is strong and English language is very popular around the globe. For me, in addition to these, the most attractive attraction was freedom and the country of democracy.

Being a student of English literature, I had a great affection to this country since my College life as most of the great writers and philosophers I read about were from the United Kingdom. Father of English drama, Shakespeare, father of English prose Francis Bacon, leading English poet Geoffrey Chaucer, freedom advocate John Milton, romantic poet William Wordsworth, philosopher Nobel Laureate T.S.Eliott and so many literary figures and thinkers made me think the United Kingdom as the greatest country of the world- not in term of its size after the end of colonialism but in relation to the thinkers who made this country renowned around the world.

This is a country of democracy – known as mother of democracy -because it is this country which implemented democratic values and norms. It is also known as the country of rule of law where the system of democracy has worked since ancient time.


Story does not end there. The country was dignified in my professional career too.
As a journalist, I found this country the most attractive because of freedom. The country had stepped a long stride in the field of freedom. Freedom has not come within a short period of time. There was struggle for freedom of the press since nearly 500 years ago when John Milton wrote Areopagitica in 1644 requesting the parliament against censorship. How attractive this country could be to a journalist of Nepal, where censorship was the essence of journalism. There used to be censorship from the state and the non state actors threatened to take life and journalists were forced to take the secret path of “self censorship.”

Another attraction of this country is that it is centrally located. Europe is the centre of the world and can fly east or west, south or north making it the most comfortable country to travel. Whatever difficulties we have to face, one thing is clear, the judicial system provides justice. It has proved not only once, twice but thrice even in our HSMP case.

A famous poet of the time said about this country:
“Thy not frighten with the smell, taste the tasty ale of the tavern,”
So we should not be frightened with the decision of the officials but we should move ahead strongly with unity to remove the thorny path ahead as the principle of the “survival of the fittest “still aptly applies even today’s age of information technology. Taste can be found only through court.

We – the immigrants- are not the only one group to say that it is unlawful to change rules retrospectively. MPs, leaders, journalists and general public here are also saying the same. Justice Mrs Cox DBE has also the same feeling.

In her verdict, she said: "I conclude, therefore, that 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”

We can conclude that there "is a dearth of skilled policy makers" and hang over of the colonial past in thE UK that is hindering this country from moving ahead in accordance with the changed context.

COURT VICTORY OF HSMP

Highly Skilled Migrants of the United Kingdom have won another case against the Home Office's retrospective provision of increasing the ILR period from 4 to 5 year.

In a verdict on April 6, justice Mrs Cox DBE, said: "I conclude, therefore, that 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."

UK government has retrospectively changed the HSMP rules since it began in 2002. The HSMP migrants had also won the case last year.

All the retrospective changes were nullified by the court. However, the Home Office refused the visa of those immigrants who had applied for Indefinite Leave to Remain in the UK after completing 4 years.

The justice has also quoted the following lines from the Home Office guidelines that clearly shows that the HSMP visa holders can apply for ILR after 4 years.
How long can I stay in the UK if I enter as a skilled migrant?

A: … after 4 years in the UK as a highly skilled migrant you can apply for settlement. The main criteria for settlement will be that you have spent a continuous period of 4 years in the UK (except for trips abroad of 3 months or less, totalling less than 6 months in the 4 year period) in a category leading to settlement and that you continue to be economically active in the UK as a highly skilled migrant."

Another provision was:

I have already applied successfully under HSMP. How does the revised HSMP affect me?
A: Not at all. It is important to note that once you have entered under the programme you are in a category that has an avenue to settlement. Those who have already entered under HSMP will be allowed to stay and apply for settlement after four years qualifying residence regardless of revisions to HSMP."

The justice said:"It was made clear during the hearing, as I have already stated, that the Secretary of State accepts that it is necessary to deal with the individuals who were members of the scheme before April 2006. She accepts too that no individuals should be disadvantaged in relation to being removed from the UK and in relation to being asked to pay an additional fee. However, in my judgment, the proposed policy referred to in the letter of 19 February 2009 does not go far enough, for the reasons I have given. "

She concluded "My provisional view is that the Claimant is entitled to the relief sought, but I shall invite submissions from counsel as to the appropriate relief in this case before deciding on the form of the Order."

Hailing the victory, 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 a press release it said 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.

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 2008 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.”

Camillus Osubor, Head of Policy at HSMP Forum said “HSMP Forum will continue to strive to lobby and challenge any unfair policies which may victimise migrants in the UK.”

Similarly, Co-ordinator of the HSMP Forum Reading Dr Nabin Acharya said that the verdict is the victory against the injustice of the Home Office which has retrospectively imposed rules on the HSMP migrants.

We have been able to get justice only after knocking the door of the court, he said, adding that the Home Office should not repeat this in the future.

About 49,000 HSMP immigrants were inducted to the programme before the introduction of the new rule retrospectively in November 2006. It is expected that among them about 50 percent immigrants and their family members will be benefited directly from the court verdict.

SACRED THREAD BEARING CEREMONY IN THE UK

With the increase of the number of Nepalese community in the United Kingdom, Nepalese have started to give continuity to their religious and cultural tradition holding various cultural and ritual programmes.

In this connection, Bratabandha, the sacred thread bearing ceremony, of two teenage boys was held at a special ceremony at Hindu temple of Reading. This was the first time that such Bratabandha programme of the Nepalese was held in Reading, according to the priest of the temple.

The joint Bratabandha of Alok Acharya and Prashant Adhikari, sons of Dr Nabin Acharya of Reading and Binod Adhikari of Bracknell respectively , was held amidst an auspicious chanting of sacred mantras of the Hindu scriptures. As per the Hindu tradition, fathers of the boys whispered the Gayatri Mantra to them.


A large number of Nepalese living in the area and other parts of the United Kingdom including visitors from Nepal that included renowned gaenochologist Dr Bhola Rijal attended the ceremony which was appreciated by Nepalese as well as the Indian community living in the area. More than 125 guests attended the ceremony.

Despite the holding of such ceremony in the United Kingdom, where the number of Hindus is very nominal- third largest after Christianity and Muslim- the programme was held fulfilling all the Hindu rituals.

“This has encouraged to all of us and I have also planned to hold the sacred thread ceremony of my son”, said Dr Sitaram Basnet after attending the programme. I was planning to go to Nepal to perform Bratabandha of my teenage son but now I realised that it is appropriate to organise such rituals here in the United Kingdom, he added .

Tanya Shivalingam, a regular visitor of the Reading Hindu temple, said that he was very happy to see that a large number of Nepalese people have started to visit the temple regularly and hold such religious ceremonies to give continuity to their religious and cultural tradition.

Hinduism is the oldest religion of the world with such a great tradition of love, pity, humanity, brotherhood and fraternity, he said, adding that we all should unitedly move ahead for the promotion of our tradition.

Similarly, Bratabandha of two sons of journalist Shashi Paudel was held at his home in Camberley, Farnborough. More than 200 guests including officiating ambassador of Nepal to the United Kingdom Jhabindra Aryal were present at the programme.

The number of Nepalese living in the United Kingdom is estimated to be over 100,000 and most of them are the Gurkhas and their families, students and highly skilled migrants.