Date - 10th December 2008


Skilled migrants celebrate High Court victory over Home Office /

Thousands of skilled migrants in Britain are celebrating another legal victory over the Home Office after winning High Court permission to challenge unfair retrospective changes to their visas.

The home secretary, Jacqui Smith, threw away at least £85,000 of taxpayers’ money in a previous battle that saw the High Court come down resoundingly in favour of skilled migrants.

“The Home Office has failed to obey that ruling, so regrettably we are forced back into the courts. Jacqui Smith is wasting more public funds on this bizarre vendetta,” said Amit Kapadia , Executive Director of the campaign group HSMP Forum, which represents people on the highly skilled migrant programme visas (HSMP).

Mr Kapadia said the latest challenge was against the home office forcing skilled migrants to extend their visas to five years when they were originally promised permanent settlement in Britain, known as indefinite leave to remain (ILR), after four years.

In ordering that the latest challenge go ahead, deputy high court judge Stuart Isaacs QC said HSMP Forum “clearly has an arguable case”. He threw out an attempt by Ms Smith to stall proceedings. A full hearing is due soon.

Mr Kapadia explained how the whole case arose. “The Home Office, panicked by illegal immigration and the influx of migrants from eastern Europe, wanted to cut down the numbers. So it tried a pincer movement against an easy target: migrants in the professions - people like doctors, scientists and engineers ­­­- who came here legitimately from other countries on a very strict skills-based programme,” he said.

“First, it made them apply to extend their visas to a fifth year. Then it changed the rules so that it would be much harder or impossible to qualify for that fifth year or gain permanent settlement.

“The combined effect was to force many skilled migrants to leave Britain after building a life and career here for four or more years. We took these matters to court and Justice Sir George Newman saw straight through the Home Office tactics – ruling in April 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’.”

Ms Smith subsequently repealed the stricter rules but not the change from four to five years, Mr Kapadia said. “In the meantime, several people have won individual cases forcing the Home Office to grant them permanent settlement after four years as originally promised. The legal precedents are growing but Ms Smith continues to burn public money attacking migrants who work hard and completely support themselves without using any public funds.

“The rule changes we are fighting against have been repeatedly condemned on all sides of politics, including by the government’s own MPs, members of the House of Lords, various government and non-government committees and human rights experts – and of course by the High Court.”

Media contact: Amit Kapadia

Tel: 07830374629 / 02087373623



* The latest judicial review was granted on November 27. The skilled migrants’ case is being argued by the renowned barristers Michael Fordham QC and Rick Scannell.

* Justice Sir George Newman, in his original judgment of April 2008, said of the HSMP rule changes: “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.

“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.

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.

* Skilled migrants have made many sacrifices believing the promises made by the British government and Home Office, giving their established careers, selling properties and winding up all investments in their home countries. “Migrants gave up opportunities of career advancements and also immigration to other countries based on the promises made by the UK government,” said Amit Kapadia, executive director of HSMP Forum. “But the rule changes ignored all these sacrifices and the commitment shown. The changes unfairly question their commitment and integration to Britain by asking them to spend an additional year for settlement.”

* In addition to travel restrictions under the rules to obtain ILR, many migrants face difficulties getting permanent employment and senior positions due to employers’ reservations in recruiting those who do not yet have the right to live permanently in Britain . “A year more involves a year more of employment limitations and lost opportunities,” said Amit Kapadia, executive director of HSMP Forum. “Skilled migrants are unable to buy a house because their limited visas make banks and financial institutions hesitate to give them mortgages. Amazingly, the government is now planning further changes in the permanent settlement and citizenship criteria.”

* The delay of an extra year for ILR has caused various forms of hardship for migrants and their families. These include migrants’ children not being able to attend universities due to high international student fees. Some have had to abandon their studies or lower their career expectations. 


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