In R (on the application of HSMP Forum (UK) LTD) v Secretary of State for the Home Department [2009] EWHC 711 (Admin) (6 April 2009) the HSMP Forum has repeated its success of almost exactly one year ago in once more securing a judgment in the Administrative Court whereby the government's imposition of new conditions upon people already in the UK under the Highly Skilled Migrant Scheme was found to be unlawful.
In his judgment in April of 2008 in R (on the application of HSMP Forum LTD) v Secretary of State for the Home Department [2008] EWHC 664 (Admin) (8-4-2008), Sir George Newman found that people admitted to the United Kingdom under the Highly Skilled Migrant Programme had been given an assurance that the terms under which they would become eligible to apply for settlement in the UK would not change. The HSMP, which was initially introduced in 2002, was the pilot for the United Kingdom Border Agency's Points Based System (PBS). It provided an alternative for highly qualified individuals to enter the UK outside the Work Permit regime.
Under the HSMP migrant workers capable of demonstrating that due to their qualifications, experience and the level of their previous earnings overseas they would be likely to be employed in the UK in high status jobs which would lead to their paying lots of tax were admitted to the UK without having a job offer. The HSMP has now been replaced by the Tier 1 (General) category of the PBS.
The HSMP sought to attract people who were likely to command high earnings to the UK. Under its terms, applicants had among other things, to show that they intended to make the UK their main home, and accordingly many successful applicants had brought their families with them and had put down roots in the UK.
In November of 2006, the Secretary of State brought in changes to the Immigration Rules whereby the qualifying criteria for entry under the HSMP were made far more demanding.
Controversially, the changes also affected people who were already in the UK under the HSMP. They had to meet these stringent new tests in order to qualify for extensions of their stay in the UK. Prior to the changes applicants had needed only to show that they had remained "economically active in the UK" to succeed in applying for indefinite leave to remain after having spent the required number of years in the UK under the scheme.
Many of these people were simply unable to qualify under the changed rules.
In August of 2007 the House of Commons and House Lords' Joint Committee on Human Rights said in its report:
"The changes to the Rules are so clearly incompatible with Article 8, and so contrary to basic notions of fairness, that the case for immediately revisiting the changes to the Rules in Parliament is in our view overwhelming."
The HSMP Forum is an organisation set up by those affected in order to mount a legal challenge to the changes on the basis that they legitimately expected, on the basis of assurances given to them in guidance issued by the UKBA's predecessors (the Immigration and Nationality Directorate and latterly the Border and Immigration Agency) that no changes to the HSMP regime would affect their eligibility for settlement in the UK.
HSMP Forum's success last year (2008) was effectively in respect of the government's shifting the goalposts without limiting the effect of the change to new applicants. It shows how, in an appropriate case, the Administrative Court will intervene to protect a person's legitimate expectation.
It's important to recognise that the case has to be appropriate – because the Court will not do so lightly. An example of the Court having taken an opposite view of whether people already in the UK could legitimately expect that changes in the Immigration Rules would not affect them is Mr Justice Mitting's judgment in R on the application of Ooi and others [2007] EWHC 3221 (Admin) [2007] EWHC 3221 (Admin), which was decided shortly before Mr. Justice Newman's judgment, on 18-12-2007.
The Claimants in Ooi - who were work permit holders as distinct from people under the HSMP - didn't and couldn't rely upon the kind of overt assurances made to the members of HSMP Forum by the Secretary of State. So the Secretary of State successfully argued in Ooi that the Claimants had never had a legitimate expectation that the Rules whereby they would become entitled to apply for indefinite leave to remain would not bechanged.
This time round the HSMP Forum was challenging the change in the qualifying period for their members' becoming eligible to apply for indefinite leave to remain from four years to five years (the same change which was unsuccessfully challenged in Ooi).
Drawing strongly upon Sir George Newman's judgment Mrs Justice Cox found that:
"there was, in this case, the clearest of representations to those already on the HSMP before 3 April 2006 that they would qualify for indefinite leave to remain in the UK after a period of continuous residence of 4 years.”
As Sir George Newman had done with respect to the changes in the qualifying criteria – having found that there was such an expectation Mrs Justice Cox declared that she too was unimpressed with the Secretary of State's arguments to the effect that the violation of the Claimants' expectations was nonetheless justified. She said:
"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."
As readers of this site will be aware the much heralded "shake-up" of immigration law as the UKBA has proudly described its Points Based System has affected people already in the UK under a wide range of now deleted immigration categories. This decision, like Sir George Newman's last year, demonstrates that where such changes have resulted in real unfairness a challenge to the lawfulness of them may succeed in the Administrative Court.
Crucially however the unfairness identified in these cases lay in the statements made to the Claimants in the Secretary of State's guidance. This is a particular feature of the HSMP which - it has to be said - is not obviously repeated in the reams of guidance which has accompanied the UKBA's implementation of each new Tier of the PBS.
The Courts are likely to be quick to point this out if faced with challenges which it feels more closely resemble those which failed in the Ooi case.
It is particularly important that as this area develops anyone whose current leave to remain in the UK, or more particularly their eligibility to apply for further leave to remain or for settlement is or may be affected by changes in the Immigration Rules should seek professional advice as a priority.
Gherson's solicitors are ideally placed to advise both on the PBS's highly complex transitional provisions and also as to how and when applications should be made by people to whom they apply. Where appropriate they are also able to initiate proceedings in respect of decisions which fail properly to implement such provisions or are otherwise unfair or unlawful.