HSMP changes ruled illegal by UK High Court

07 April 2008

Changes to the Highly Skilled Migrant Programme (HSMP) which affected individuals who wished to remain in the United Kingdom under the immigration scheme but did not qualify under new rules have been ruled illegal by a UK High Court ruling.

The HSMP, first introduced in 2002, is a points based system which allows non-European Union nationals to immigrate to the UK if they can score enough points based upon criteria such as age, qualifications, UK experience, and past earnings. The last major change to the HSMP, enacted in November 2006, required migrants extending their HSMP visa to pass the points test again on extension of their visas.

The retroactive nature of the changes caused an extensive amount of controversy. A number of legal challenges, were lodged, with the latest challenge brought forward by the HSMP Forum. Their case states that the changes of 2006 are grossly unfair and a breach of "legitimate expectation" that migrants accepted into the UK would be able to make the country their home as long as they honored the rules under which they entered.

In a judgment handed down on 8 April 2008 Sir George Newman, the High Court judge who ruled over the case, granted the HSMP Forum?s application for a declaration that the Secretary of State had unlawfully applied the changed provisions of the Highly Skilled Migrant Scheme to people who had entered the United Kingdom under the previous requirements of the scheme. The judge found that due to the terms of the guidance provided to the applicants when they entered the UK under the HSMP they had legitimately expected that their applications to extend their stay in the UK would be considered under the same criteria which had applied when they had been granted leave to enter. His crucial conclusion was:

"I find that the terms of the scheme, properly interpreted in context and read with the guidance and the rules, contain a clear representation, made by the defendant, that once a migrant had embarked on the scheme he would enjoy the benefits of the scheme according to the terms prevailing at the date he joined."

Sir George Newman, said that the old rules should be honored for those already in the UK.

"In the circumstances, 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," Judge Newman said in his ruling. "Good administration and straightforward dealing with the public require it. Not to restrain the impact of the changes would, in my judgment, give rise to conspicuous unfairness and an abuse of power."

In applying altered and more stringent criteria to applicants? applications for extensions of their leave to remain the Secretary of State had therefore acted unfairly in a manner which amounted to an abuse of power. The judge stated that he could not see any sufficient public interest which was capable of outweighing the unfairness that the application of the changed criteria caused to the applicants.

The Secretary of State does not intend to seek permission to appeal to the Court of Appeal against Sir George Newman?s judgment and his order granting a declaration in favour of the applicants.

Anyone who has been refused an application for an extension of stay and has had an appeal against such a decision dismissed should seek professional legal advice in the light of Sir George Newman?s judgment and the fact that there will be no appeal against it by the Secretary of State. fastUKpermit has experience in making representations since the conclusion of legal challenges to the Secretary of State?s change of the criteria in November 2006. Our lawyers are ideally placed to provide professional advice in this area.