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.