Gherson success in student / HSMP challenge

Following urgent legal intervention by Gherson solicitors a student has resisted his removal from the UK after his leave to remain as a student was wrongly cancelled by an immigration officer.   His leave is shortly to be reinstated and he is now awaiting the outcome of his application for an extension of stay as a highly skilled migrant.  

The UK’s immigration rules permit students who have completed their degree courses to switch from the leave to remain in the UK they were granted as students to that of a Highly Skilled Migrant.   To do so they must satisfy the increasingly stringent requirements of the Highly Skilled Migrant Programme (HSMP).  Under the HSMP points are awarded against various criteria.  Applicants require a total of 75 points to qualify – but all of these points may be obtained by an applicant’s obtaining a Masters degree in Business Administration (MBA).  The MBA must be awarded following a course of study at one of a list of fifty prestigious colleges approved by the Secretary of State.  

Gherson’s client had entered the UK in August 2005 with a student visa entitling him to leave to remain in the UK until the end of November of 2007.  He completed his MBA course in the summer of 2007, and was notified that he had passed his course in mid September.    Students are entitled to work part time during the term time of their courses, and full time during the vacation.  As he was entitled to - the client concerned worked during and following the completion of his course.   

After obtaining his results the client took steps to prepare to apply to switch to leave to remain under the HSMP, which included booking himself on an International English Language Testing System  (IELTS) course, in order to satisfy the English language proficiency element of his HSMP application.   He had difficulty getting a place however because the available approved courses are very oversubscribed at present.   (This oversubscription is because of the Secretary of State’s recent inclusion of the English Language test in the immigration rules’ requirements to be met by those who are already in the UK having entered under the HSMP, and who wished to apply to extend their stay under the programme).  

The client’s difficulties arose after his work recently required him to travel outside the UK for a day trip.  Upon his return he was questioned by an immigration officer who told him that his leave to enter as a student was cancelled and that he would have to return to his home country if he wished to make an application under the HSMP.  This was because his course of study had come to an end and his reasons for wishing to re-enter the UK were different from those for which he had been granted entry clearance.  The officer set directions for his removal from the UK a few days later.  

In the limited time available Gherson issued an application for judicial review challenging the decision to cancel the client’s leave to remain and to give directions for his removal to his home country.  In the application it was pointed out that

•    The client was fully entitled to work during the currency of his leave to remain as a student

•    He was also fully entitled under the immigration rules to apply to switch from his student leave to that granted under the HSMP.  Although he had not needed to do so until his student leave expired he would have made an HSMP application sooner had the IELTS courses not been oversubscribed.

•    The client’s leave to remain did not “lapse” as a consequence of his travelling outside the UK

•    It was simply contrary to the provisions of the immigration rules to require the client to return to his home country in order to apply for leave to enter the UK under the HSMP

•    In such circumstances the immigration officer had failed properly to exercise his discretion and had acted unlawfully in cancelling the client’s leave to remain.  

•    Alternatively in any event it was simply not the case that the client was seeking to enter the UK for a purpose different from that for which he had been granted leave to enter.  The regime established by the immigration rules in respect of students and their entitlement to switch (via an application made from within the UK) necessarily implied that there would be a period of transition between different immigration statuses.  

After issue of the client’s application in the Administrative Court the Border and Immigration Agency (“BIA”) verbally informed Gherson that the removal directions had been suspended.  Since nothing was received in writing Gherson nevertheless obtained an injunction requiring the BIA not to proceed with their client’s removal pending resolution of his application for judicial review.  

Most recently the Secretary of State’s representatives have informed Gherson that the client’s leave to enter the UK will be reinstated.  

As can be seen Gherson is ideally placed to deliver prompt and accurate advice and representation to clients when it is, as in this case, desperately needed.  The client’s entitlement to make an application to switch from his leave as a student to that of a Highly Skilled Migrant has now been restored.  The purpose of the regime established by the rules – enabling highly qualified migrants to contribute beneficially to the UK’s economy - has not been frustrated.