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.”3
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:
-
http://www.hsmpforumltd.com/letter_before_claim.pdf
-
JCHR Report on HSMP Changes, conclusions and recommendations, page 18
and 19, August 2007;
http://www.publications.parliament.uk/pa/jt200607/jtselect/jtrights/173/173.pdf
3. Para 61,
http://www.bailii.org/ew/cases/EWHC/Admin/2008/664.html |