HSMP Forum's letter to Home Secretary Jacqui Smith

Dt – 18th April 2009

Kind Attn: Jacqui Smith, Home Secretary 

Dear Ms Smith,

As you may be aware of our recent high court judgment of 6th April 2009 which ruled that the retrospective changes applied in April 2006 by extending the indefinite leave to remain qualifying period from 4 to 5 years for those on Highly Skilled Migrant Programme (HSMP) scheme was unlawful. The high court also ruled that the July 2008 HSMP Forum Limited policy document was accordingly unlawful in not making a provision for the Indefinite leave to remain after 4 years for those admitted on the HSMP scheme prior to 3rd April 2006 after our April 2008 high court ruling.

Contempt of High Court ruling

In a letter dated 8th April 2009 following the high court ruling, Dr Ashish Vijayan who has been in UK on HSMP was issued with a refusal when he made his indefinite leave to remain application after 4 years of legitimate stay. On 15th April 2009 I wrote to Ms Lin Homer, Chief Executive , UK Border Agency to withdraw the refusal in light of the high court ruling. There has been no response in this matter. Please be aware that your office is in contempt of the high court ruling by issuing a refusal letter based on not completing 5 years of stay. We may approach the court for contempt if UKBA fails to take an immediate action in this matter. You will also have to pay the costs thereby.

If this is a mistake then it only proves how incompetent the UKBA acted in not ensuring the staff is well instructed about the high court ruling.  

Citizenship and Immigration Bill

We would also like to keep you well informed that in reference to our high court judgment of 6th April 2009 that the court order on 8th April 2009 mentioned “In respect of all persons admitted to the Highly Skilled Migrant Programme as at 7 November 2006, those individuals are entitled to the benefits of the scheme (including settlement) according to the terms (including as to qualifying period) which applied on the date when they joined”. Please be aware that in light of this order the Government is not entitled to nor has any right to apply any further retrospective changes to all migrants admitted on the HSMP scheme as at 7th November 2006. Any attempt to apply any new immigration changes to this set of migrants will be unlawful and we will approach the court for contempt!

Our two high court Judgments (April 2008 and April 2009)also sets a precedent that the Government will be acting unlawfully if it applies such retrospective changes to migrants already in the UK . Any attempt to apply new citizenship and immigration bill to existing migrants who have been in UK before the implementation of this bill will meet the same fate as the April and November 2006 retrospective changes.

Yours Sincerely

Amit Kapadia

Executive Director (Chairman)

HSMP Forum

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