Joint Committee on Human Rights Report on HSMP
In its report published on 9 August 2007 the Joint Committee has concluded that changes in the Immigration Rules made in 2006 under which persons admitted under the Highly Skilled Migrant Programme (HSMP) may apply for extensions of their stay in the United Kingdom (and thereafter for indefinite leave to remain) are not compatible with the UK’s obligations under Article 8 of the European Convention on Human Rights (ECHR). The changes in the rules of April 2006 extended the required period of residence (to qualify for indefinite leave to remain) from 4 to 5 years and those in November 2006 tightened the requirements which have to be met in order to qualify for an extension of leave.
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House of Lords and House of Commons Joint Committee on Human Rights report: Highly Skilled Migrants – Changes to the Immigration Rules
The Highly Skilled Migrant Programme (HSMP) provides a route to settlement in the United Kingdom. Applicants for consideration under the scheme have to apply to diplomatic posts overseas for an entry clearance which if granted will serve as leave to enter the United Kingdom. To succeed applicants have to satisfy the three requirements of rule 135A of the immigration rules. These are obtaining a document from the Home Office indicating that the applicant satisfied the qualifying criteria stipulated by the Secretary of State for entry under the programme, showing that the applicant intends to make the UK his or her main home, and showing that he or she can be maintained and accommodated without recourse to public funds. Prior to changes made in November of 2006 the criteria were met by an individual’s scoring points against factors such as academic background, work experience, earnings during the past 12 months and achievement in his or her chosen field. An extra 10 points could be claimed by the applicant’s having a skilled partner. It was necessary to achieve 65 points. Successful applicants would be granted leave to remain for 1 year (rule 135B). Prior to the expiry of this leave to remain they could apply for an extension of stay under rule 135D. To get an extension of their leave they had to show that they had entered under the scheme and that during their leave to remain they had taken all reasonable steps to become lawfully economically active in the UK in employment, self-employment or a combination of both, as well as satisfying the requirements of rule 135A. Subject to satisfying these conditions an extension of stay for 3 years would be granted. Following completion of four years leave to remain under the scheme an applicant could apply for indefinite leave to remain.
The April 2006 rule change made the initial period of leave to remain 2 years and the qualifying period for applying for indefinite leave to remain 5 years. But it was the November 2006 rule change, to the requirements for an extension of stay, which was immediately highlighted as controversial. In the same month the Home Office changed the criteria for entry under the programme, removing the ability of applicants to rely upon their past work experience, significant achievements in their chosen field, and having a skilled partner. Instead under the new criteria points are awarded in relation to previous earnings, qualifications and age. The requirement to demonstrate that the applicant had taken all reasonable steps to become lawfully economically active in the UK was removed. Applicants for an extension now instead had to demonstrate that they had achieved “at least 75 points in accordance with the criteria specified in Appendix 4 of these Rules”.
So persons who had been admitted under the original criteria, and who in compliance with the requirement of the rules had made the UK their main home, now had to satisfy far more stringent requirements than those which they had been told they would have to meet in order to remain in the UK. The majority of those admitted under the original criteria could not do this and therefore they and their families faced enforced removal from the UK.
The Human Rights Committee resolved to examine these changes in March of this year. It drafted 2 questions to be answered by the Secretary of State with regard to how:
i) the changes could be said to be “in accordance with the law” – this being a requirement of Article 8 (2) of the European Convention on Human Rights and
ii) why the Secretary of State had not made transitional provisions to protect those who had, in accordance with the requirement of the rule, made their home in the UK.
In its report the Committee has found that the transitional provisions referred to in the Secretary of State’s reply to the Committee’s enquiry do not alleviate the retrospective effect of the rule changes. This was because the people who have made the UK their main home under the requirements of the rules did so on the basis of the UK government’s clear statements to the effect that they would be granted an extension of their leave to remain if they fulfilled certain criteria and that they would then be granted indefinite leave to remain if they met certain other criteria. The Committee found that the Secretary of State could have made the changes apply only to those not yet granted leave to enter the UK and thereby have avoided the retrospective effect of the changes. The changes therefore did not reflect the necessary forseeability and predictability of their effects without which interference with rights to family and private life could not be said to be in accordance with the law. While the Secretary of State’s professed aim in bringing in the changes – i.e. for the purpose of the UK’s economic well being – was legitimate, the effect upon those who had made the UK their main home was not proportionate to that aim. The Committee states:
“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.”
This is a powerful condemnation of the rule changes and it is the consequence of the careful application by the Committee of the requirements of Article 8 of the European Convention on Human Rights. While it remains to be seen whether the Home Office will follow the Committee’s recommendation that the rule changes should be immediately revisited – and initial indications are that the Home Office will not do this - the Committee’s reasoning and its conclusions will be invaluable to persons who are applying for extensions of stay under the HSMP and also to those who are appealing to the Asylum and Immigration Tribunal against any refusal to vary their leave to remain.
