HSMP internal guidance
The Immigration and Nationality Directorate of the Home Office has acknowledged that is has received a number of requests under UK Freedom of Information laws to publish the internal guidance used by caseworkers deciding applications under the Highly Skilled Migrants Programme (HSMP).
Work Permits UK, a part of the Immigration and Nationality Directorate, says that it is reviewing the way published and internal guidance is working and that it intends to publish new guidance at the end of May. However, it has declined to make available the internal guidance being used in the interim. It stated that it had originally intended to publish this guidance in January or February, but has decided to wait until the current guidance has been revised. This leaves something of a vacuum for applicants and their advisors making applications in the interim.
Firms such as Gherson and Co. who submit significant numbers of HSMP applications are able to gain some idea of the Home Office approach by looking at the progress of the applications in which they are involved, but individuals, and lawyers who do few HSMP applications, are arguably more disadvantaged by having to wait for the internal guidance to be published. In general, the Home Office makes much of its internal guidance to caseworkers publicly available.
The HSMP programme is the focus of intense scrutiny because it is seen as the forerunner of the Points-based immigration system that the UK intends to introduce for all those making applications to work in the UK. At the moment, the Highly Skilled Migrants Programme is the only part of the UK immigration system where applicants score points for attributes, with a minimum number of points required for an application to succeed. The government has stated that it intends the Points-based system to be based on objective criteria. Home Office internal guidance often deals with how the Home Office exercise judgement in complex or problematic cases. The internal guidance could provide some indication of how objective the HSMP system is in practice, and how much discretion and judgement is involved in deciding applications. This would be helpful in understanding how a Points-based system will work in practice.
One controversy surrounding the Points-based system is that it is intended that decision-making on points-based will be moved from the specialist work permits to UK to Entry Clearance Officers at UK posts abroad who deal with all types of visa application. At the moment the specialist Work Permits UK decides HSMP applications. An Entry Clearance Officer at a post abroad seems likely to need more guidance than a specialist dealing exclusively with employment. Work Permits UK are based in one place, whereas Entry Clearance Officers are scattered across the world. Again, this places a greater pressure on guidance to ensure consistency of decision-making. What consistency can be achieved for HSMP under the current system seems likely to be more difficult to achieve when decision-making is decentralised under the Points-Based system.
