Changes to HSMP: no legitimate expectation

Updated by Gherson on Monday 14 January 2008. | | | | | |

The Highly Skilled Migrant Programme (HSMP) was introduced in January of 2002.  It enabled skilled and experienced workers from overseas to obtain entry to the United Kingdom, with a route to settlement in the UK.    The eligibility of people for entry was established by the awarding of points against a range of criteria, in particular each applicant’s work experience and qualifications in his or her country of origin.  At that time it operated as a policy outside the immigration rules, but in April of 2003 the programme was incorporated into the immigration rules at rule 135A to 135H Rule 135A (i) required applicants to possess a document issued by the Home Office which indicated that the applicant had achieved the necessary number of points. Applicants also have to intend to make the UK his or her main home, and to be able to maintain and to accommodate themselves and any dependants without recourse to public funds.  As for what was required for an extension of stay under the programme, rule 135D required that applicants had entered the UK under the programme and that they had:

“.. already taken during his period of leave all reasonable steps to become lawfully economically active in the United Kingdom in employment, self employment or a combination of both”

- as well as meeting the requirements of rule 135A. 

In October of 2003 the Immigration and Nationality Directorate (nowadays the “Border and Immigration Agency”) issued guidance as to the operation of the scheme.  That guidance included the following paragraphs – helpfully set out in question and answer form:

"24. 9 Q: What if the scheme changes?
A: As with any immigration scheme we reserve the right to adapt some of the criteria or documentation associated with the scheme and will inform you via our websites of any such changes. All applications will be treated on the basis of the HSMP provisions at the time that they were submitted.

24.10 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 four years qualifying residence regardless of these revisions to HSMP."

In November of 2006 the government changed the criteria for eligibility, making them far more stringent.    As a consequence many people – as many as 49,000 – who had applied successfully under the programme found themselves unable to meet the requirements for an extension of their stay in the UK.   The apparent unfairness to these people was compounded by the fact that in order to comply with the requirement that they should make the UK their main home many of them had sold their homes in their own countries and had come to the UK with their families, having taken their children out of school and established them in education in the UK. 

In AA and Others (Highly skilled migrants: legitimate expectation) Pakistan [2008] UKAIT 00003 (21-12-2007) the Asylum and Immigration Tribunal had to decide whether the guidance issued in October 2003 created a legitimate expectation that changes to the qualifying criteria would not affect the Appellants  – and that their applications for further leave to remain would not require them to show more than that they scored sufficient points (against the same criteria which had existed when they entered) and that, in accordance with the requirements of rule 135D, they had  taken all reasonable steps to become economically active in employment.  The Appellants therefore argued that the refusals of their applications for extensions of their stay under the HSMP were not in accordance with the law.   AA and MC’s appeals had been dismissed by Immigration Judges, and KS’s had been allowed. 

Counsel for the Secretary of State submitted that the Asylum and Immigration Tribunal had no jurisdiction to consider an appeal on a public law point such as legitimate expectation, that if it did have such a jurisdiction not legitimate expectation of the kind relied on by the appellants existed and if the legitimate expectation did exist it was overridden by the public interest in denying the appellants the benefit of that expectation. 

On the first point the Tribunal found that it definitely did have jurisdiction of this kind.   It referred to the Court of Appeal’s judgment in DS Abdi v Secretary of State [1996] Imm AR 148, which established the meaning (for the purpose of understanding the jurisdiction of what was then the Immigration Appeal Tribunal) of the phrase “not in accordance with the law”.  It referred to a recent Court of Appeal judgment (AA (Afghanistan) v Secretary of State [2007] EWCA Civ 12) in which the Court remarked that the Tribunal should have allowed the Appellant’s appeal under section 86 (3) (a) of the Nationality Immigration and Asylum Act 2002 since in that case the Secretary of State had failed to follow his own applicable policy and the Tribunal was obliged by this subsection to allow the appeal if the decision was “not in accordance with the law”.   It seems therefore that unless the Secretary of State decides to appeal against this determination – which seems unlikely since from her perspective it must be a hugely gratifying success – the issue as to the public law jurisdiction of the Asylum and Immigration Tribunal has finally and conclusively been resolved. 

The essence of this case however is the question of whether or not the legitimate expectation contended for by the Appellants existed or not.  Crucially, at paragraph 94 of its determination the Tribunal says this:

"Whilst para 24.10 is not a model of clarity, it cannot reasonably bear the meaning and create the expectation claimed. To read it as such would be to ignore the immediately preceding para 24.9 which states that is not how the scheme will be applied if any changes to it occur in the future. This is not merely a pedantic or overly analytical construction of para 24.10. It is to read it in context and in the light of what is said in immediate proximity to it in the Guidance. A reasonable reader would not read the (potentially) beneficial provisions without reference to such clear and unequivocal provisions that negate any beneficial meaning that might be gleaned from para 24.10. The effect is that any ambiguity is resolved against the claimed legitimate expectation that the (then) current rules and criteria under the HSMP will always be applied to the appellants."

So the interpretation of the Home Office’s guidance (which the Tribunal accepted that the Appellants genuinely held) was not one at which “a reasonable reader” would have arrived.  It followed that the decisions to refuse the Appellants’ applications for an extension of their stay had not been unlawful because they had no legitimate expectation that the change in the rules would not be applied to them. 

Having disposed of the Appellants’ cases regarding their legitimate expectation the Tribunal then considered whether if its conclusions on this point had been wrong the public interest nonetheless outweighed the unfairness caused to so many people.  It stated that:

“…it seems to us that even if a promise or a representation had been made we are not satisfied that it would be unfair to these appellants for the Secretary of State to renege on that promise.”

It must be said that this “view” - that it wouldn’t be unfair for the Secretary of State to renege on his promise – appears to be in a different category from the question of whether the unfairness is outweighed by the public interest.  However the Tribunal found that it would not be appropriate for it to reach a concluded view on this point, although it found that there were “powerful arguments” capable of indicating that the public interest outweighed any unfairness caused to the Appellants.   The Tribunal then turned to the question of whether the decisions engaged their rights protected by Article 8 of the European Convention on Human Rights.  This had of course been the subject of condemnation by the House of Lords/ House of Commons’ Joint Committee on Human Rights  which had stated in its report published last August:

“The changes to the Rules are so clearly incompatible with Article 8, and so contrary to basic notions of fairness, that the case for immediately revisiting the changes to the Rules in Parliament is in our view overwhelming.

The Tribunal was plainly aware of the Joint Committee’s report but it did not confront this remark in upholding the determinations of the Immigration Judges who had dismissed AA and MC’s appeals.  The Tribunal considered the House of Lords’ judgments in R (Razgar) v Secretary of State [2004] UKHL 27 and in Huang [2007] UKHL 11  (but did not refer to the Court of Appeal’s guidance (following Huang) as to proportionality contained in AG (Eritrea) [2007] EWCA Civ 801).  It found that the Immigration Judge’s conclusions as to proportionality were “wholly sustainable”.  As for KS, in the Tribunal’s view the Immigration Judge had erred in finding that any legitimate expectation existed and so it followed that the Immigration Judge should not have relied on this as supporting his conclusion that the interference caused to KS’s right to respect for his private life was disproportionate.  All the appeals were therefore dismissed.   

Whether or not the Appellants apply for permission to appeal to the Court of Appeal against this determination it is unlikely that this is the end of the story for those thousands of people affected by the changes to the HSMP.   The HSMP Forum’s judicial review application is now awaiting its substantive hearing in the Administrative Court.