The UK High Court has decided that the recent changes to the HSMP which affected applicants who wanted to remain in the UK under the scheme but did not qualify under the new changes were illegal.
The highly skilled migrant program which was introduced in 2002 operates on a points based scheme which enables non EU nationals to move to the UK if they are able to score the necessary points which are awarded on qualification, age, past earnings and previous UK experience. The latest change which was implemented in November 2006 required immigrants who wished to extend their HSMP visa to satisfy the points test again in order to extend their visas.
The retrospective operation of the new changes caused a great deal of controversy. There were many legal challenges lodged which people claiming the changes were grossly unfair and breached applicant’s “legitimate expectation” that they would be permitted to remain in the UK provided they followed the rules under which they were allowed to enter.
The judgement which was handed down on 8 April 2008 by Sir George Newman allowed the HSMP Forum’s application which requested a declaration that the Secretary of State had changed the HSMP provisions unlawfully. The judge stated that the terms of guidance which were supplied to the applicants upon entering the UK as HSMP holders had allowed them to have legitimate expectations that their applications to remain in the UK would be based on the same criteria which they had to satisfy for the initial application.
Sir George Newman stated that the previous rules needed to be honoured for people who were already in the UK.
By applying the new and more difficult criteria to HSMP holders for extending their leave to remain, it was found that the Secretary of State had acted in an unfair manner which resulted in an abuse of power. The judge said there was no adequate public interest which would outweigh the injustice caused to applicants with the new changes.
It was reported that the Secretary of State would not be seeking permission to appeal the judgment.
People who have been refused an application to extend their stay or have had an appeal against a decision on this issue are advised to seek professional legal advice as a result of Sir George Newman’s judgment.
Mulberry Finch has experience in making representations since the conclusion of legal challenges to the Secretary of State’s change of the criteria in November 2006. Our lawyers are ideally placed to provide professional advice in this area.
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