HSMP Forum’s Press Release

                  Indefinite Leave to Remain Legal Challenge                  

Dt – 3rd August 2008

The HSMP Forum has commenced further legal action against the Home Office for not fully complying with the recent High Court ruling. The HSMP Forum earlier wrote to the Border and Immigration Agency (BIA) and the Immigration Minister to reverse the indefinite leave to remain (ILR) qualifying criteria changes made in April 2006 in light of the recent high court judgment but this was declined.  

After the announcement of the recent policy guidance by BIA on 9th July 2008 which clearly neglected the ILR changes, HSMP Forum issued a notice (letter before claim) of further legal action to the BIA on 30th July 2008, the letter states “It is incumbent on the secretary of state to make provision so as to enable migrants who joined the scheme before April 2006 to apply for settlement after four years. This was very plainly a benefit of the scheme then in existence and there is no reason why provision ought not be made for such persons in the guidance."1  

Amit Kapadia, Executive Director of the HSMP Forum stated: "Once again the Home Office has been requested to abide to the rule of law, and once again it seems inevitable that the law of the country needs to be enforced onto a obsessed Immigration Ministry which is going to waste the tax-payers money to further defend such unfair and unlawful policies." 

Migrants who came on Highly Skilled Migrants Scheme, Work Permits and UK Ancestral visa categories were informed on numerous occasions prior to their admission that after a period of four years of adhering to the set conditions, application could be made for settlement.

The guidance until April 2006 stated settlement after 4 years to a question;

"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."

Migrants made innumerable sacrifices believing these sweet promises made by the Government and gave up their established careers, sold properties, winded up all investments and uprooted their families to make UK their main home. But the April 2006 changes ignored all these sacrifices and the commitment shown and rather unfairly questioned their commitment to Britain and integration by asking them to spend an additional year for settlement.

The change of the period for settlement from four to five years in April 2006 provided the Home Office with the basis of unlawfully refusing extensions of further stay. Migrants and their families who applied for indefinite leave to remain after 4 years as it was initially promised by the UK Government to entice them to come to Britain to contribute to UK economy are now issued with refusal letters and are being asked to leave the country.   

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 take gap year, some to abandon their studies while some to change their career plans. Professionals like Doctors, Accountants and others who are intending to do advance courses are unable to.  

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. 

With tens of thousands of highly skilled British nationals leaving the Country and the growing trend of persons from the EU returning to the mainland, the UK economy will need to rely on attracting international skilled labour. It is, therefore, crucial that in the interests of the UK to continue to attract people who have the ability to contribute to the country’s economic well-being. For this reason it is important to realise that unless the destructive policies of the Home Office are reversed, the UK's ability to compete internationally for scarce labour resources will be irreparably damaged for the foreseeable future. 

Deepak Gautam, Executive Committee Member of the HSMP Forum said that the "exploitation and discrimination which migrants are continuously experiencing did not equate to public statements by government of promoting integration into British society. It is, in fact, the Government by breaking its promises and applying such unfair policies which seems to be causing obstacles in meaningful integration.” 

The Joint Committee on Human Rights in its report termed the retrospective ILR changes as unlawful as per Article 8 ECHR which protects the right to family and private life. 2 

In the HSMP Forum’s recent Judicial Review Judgment Justice Sir George Newman declared “I am unable to see a sufficient public interest which outweighs the unfairness, which I am satisfied the changes visit upon those already admitted under the programme. 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.” He further 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.

The recent ruling by the British High Court that the Home Office was guilty of unlawful action and responsible for a rank abuse of administrative power is a clear indictment against government policies that do not comply with the rule of law.  

Notes to the Editor

  1. http://www.hsmpforumltd.com/letter_before_claim.pdf   

  2. JCHR Report on HSMP Changes, conclusions and recommendations, page 18 and 19, August 2007;


    3.    Para 61, http://www.bailii.org/ew/cases/EWHC/Admin/2008/664.html

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