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HSMP Forum’s Press Release |
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Judicial Review challenging the Indefinite Leave to Remain changes filed |
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Date – 14th October 2008
The HSMP Forum has filed a Judicial Review application on 8th Oct 2008 against the Home Office for not fully complying with the recent High Court ruling regarding Highly Skilled Migrants. Amit Kapadia, Executive Director of HSMP Forum stated that "Home Office has constantly declined to reverse the Indefinite Leave to Remain changes even after the recent High Court ruling in HSMP Forum's favour. In the policy guidance (dated 9th July 2008), the Secretary of State failed to deal with the issue of the increase in the Indefinite Leave to Remain (ILR) qualifying period for settlement from 4 to 5 years. The changes to the ILR qualifying period in April 2006 also unfairly required some migrants to make additional extension applications and pay further application fees compared to others, thus enforcing differential treatment among migrants."
The Secretary of State for Home Department is not ready to accept that the HSMP Forum's recent Judicial Review Judgment dealt with the Indefinite Leave to Remain 4 to 5 years changes as well. The Home Office now no longer argues that the April 2006 changes were fair and lawful but are rather trying to depend on a technicality by claiming that they cannot be challenged about the ILR changes since it took place 2 years ago and hence they should be allowed to continue with these unlawful retrospective policy.
Migrants and their families who applied for ILR after 4 years are being issued with refusal letters and are threatened with deportation if they don't leave the country on their own.
The Guidance Notes issued to migrants prior to April 2006 changes clearly and unambiguously stated;
Q: 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 4 years qualifying residence regardless of revisions to HSMP.
Justice Sir George Newman, in the HSMP Forum’s Judicial Review judgement stated “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’s 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.”
To gain Indefinite Leave to Remain after 4 years of qualifying residence is a benefit which was originally promised to migrants who were admitted under the HSMP scheme.
Sir George Newman in the HSMP Forum’s Judicial Review Judgment stated “I am concerned about the repeated refusal to consider the undeniable evidence of hardship and the extent of the special commitment required of those migrants which has been placed before the defendant from a number of quarters. I am satisfied….that the defendant proposes to act unlawfully and the Court should intervene.” Migrants made innumerable sacrifices believing the sweet promises made by the British Government and gave up their established careers, sold properties, winded up all investments and made a new life with their families in the UK. Migrants gave up opportunities of career advancements and also immigration to other countries based on the promises made by the UK Government. But the April 2006 changes ignored all these sacrifices and the commitment shown and rather unfairly questioned their commitment and integration to Britain by asking them to spend an additional year for settlement. The delay of one year for ILR has caused various forms of hardships for migrants and their families. Some of the hardships caused include Migrants’ children not being able to attend universities due to exorbitant international student fees resulting in some to abandon their studies, some to take a gap year and while some to change their career plans.
In addition to the travel restrictions to be followed in order to abide by the rules to obtain ILR, many migrants have been facing difficulties in getting permanent employment and senior level positions due to employers’ reservations in recruiting those with limited leave to remain. A year more involves a year more of employment limitations and lost opportunities. Migrants are unable to obtain mortgages to buy a house due to their limited visas as Banks and financial institutions hesitate to issue required mortgages. Needless to say all their plans have been jeopardised and it led to an insecure and unpredictable future. While the Government still seems to be busy in planning for further changes in the permanent settlement and citizenship criteria later this year. Mr. Chandrasekar Elangovan, Executive Committee member of HSMP forum said that “it is quite disappointing to see the Government waste tax payers’ money in defending an unlawful rule change and a broken promise. The HSMP Forum is very confident that the UK judicial system will once again give justice to affected immigrants.” |
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