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HSMP Forum's letter to Immigration Minister Phil Woolas |
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Dt - 27th October 2008 |
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Kind Attn: Phil Woolas Sub - Correcting Unfair Retrospective Rules ! Dear Mr Woolas, On behalf of Highly Skilled Migrant scheme participants and their families we congratulate you on your new appointment. By way of an introduction, HSMP Forum (the Forum), a ‘not for profit’ organisation, was created to support and assist skilled migrants who came to the United Kingdom, the forum started since 2006 when Home Office unilaterally changed rules with retrospective effect which affected the existing participants under Highly Skilled Migrant Programme scheme. When the public were consulted in 2005 on the “Managed Migration” process1, no mention was ever made that it was the British government's intention to apply the changes in immigration policy to persons already resident in the UK via schemes such as Highly Skilled Migrants Programme, the Work Permit scheme and on UK Ancestry Entry Clearance. As is now recorded via the British legal system, the reputation of the trustworthiness of the British government, the concept of fairness, fair play and shared values, not forgetting adherence to the “rule of law” lies in tatters. The migrants made innumerable sacrifices believing various promises made by the UK Government globally that once in UK they would be entitled to indefinite leave to remain (ILR) after a completion of the four year period stipulated at the time. They gave up their established careers, sold properties, wound up all investments and uprooted their families to make UK their main home in addition to incurring heavy relocating expenditure only to be unfairly questioned on their commitment to Britain and integration by asking them to spend more time and undergo various tests for settlement and citizenship. On the 9 August 2007 report of the Joint Committee on Human Rights (‘Highly Skilled Migrants: Changes to the Immigration Rules’) recommended amendment of the rules so that both the lengthening of the qualifying period for settlement and the introduction of stricter requirements for the extension of leave apply only prospectively2.But the Home Office rejected these recommendations. In December 2006 when the scheme rules were changed by the Home Office, the Forum filed a Judicial Review and on 8th April 2008, the judgment of the High Court ruled that the Home Office acted unlawfully in applying the retrospective HSMP extension criteria changes to persons already admitted to the Highly Skilled Migrants Scheme (prior to 6th November 2006). The Judgment holistically considered benefits provided to the migrants under the HSMP. There were two main benefits which were promised to the Highly Skilled Migrants those were - extensions based on economic activity and settlement after 4 years. Justice Sir George Newman, in our 8th April 2008 Judicial Review judgement observed “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.” The Judgment concluded “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. 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.”3
The indefinite leave to remain after 4 years qualifying residence is a benefit which was originally promised to migrants who were admitted under the HSMP scheme before the April 2006 ILR changes. The Home Office agreed at the time to abide by the judgment and not to appeal. However, they have not agreed to undo the changes made to ILR requirement of five years from the period specified in the original scheme of 4 years. HSMP Forum made an official request / claim4 and subsequently through our lawyers5 wherein we have mentioned the various hardships our members are subjected to due to not implementing the judgment in full: a) JCHR recommendations and / or b) The abovementioned judgment dated 8th April 2008. As our requests were rejected by your predecessor, we had no alternative but to file a Judicial Review (on 8th October 2008) challenging the extension made to the ILR requirement from 4 years to 5 years for the HSMP members who joined the scheme prior to April 2006. In addition to the unfair changes made to the immigration rules in April and November 2006, the HSMP participants and their families are now very worried about the effects of the ‘Draft Immigration and Citizenship Bill’6, which if implemented to include the existing HSMP participants and their families, will further increase the difficulties and hardships they would have to undergo. We fully support your views published in Guardian7 on 21 October 2008 where you have stated UK should have a controlled immigration policy. We also support the government’s policy that UK should attract people who can only contribute to the wellbeing of the country and its people. You are very correct in stating that annual caps cannot be placed on immigration. We believe that it is in this spirit that the Labour government designed the Highly Skilled Migrant Programme (HSMP) to attract people who could contribute to the country in many areas where skills were in short supply at the time. In return, it should not be unfair for the participants of HSMP to legitimately expect to settle down in the UK as per the rules laid down at the time they were accepted to the scheme, provided they fulfilled those conditions. In view of the foregoing, HSMP Forum would request you to re-consider the hardships encountered by our members as explained above and restore the original conditions of the scheme for the HSMP visa holders in keeping with the High Court judgment of Sir George Newman and the recommendations of the JCHR. Your intervention at this stage will help the HSMP Forum and the UK tax payers save a great deal of costs that would otherwise be incurred in a long drawn legal battle and enhance the goodwill between the large migrant community living in the UK and your office. We look forward to receiving your response. Yours Sincerely Amit Kapadia Executive Director HSMP Forum References: 1 http://www.workpermit.com/files/consultation_document.pdf 2 http://www.publications.parliament.uk/pa/jt200607/jtselect/jtrights/173/17310.htm 3 http://www.bailii.org/ew/cases/EWHC/Admin/2008/664.html 4 http://www.hsmpforumltd.com/letter_before_claim.pdf 5 http://www.hsmpforumltd.com/LBC_2.pdf 6 http://www.official- documents.gov.uk/document/cm73/7373/7373.pdf 7 http://www.guardian.co.uk/politics/2008/oct/21/immigrationpolicy-immigration |
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