Judicial review of HSMP changes - permission granted
At about this time in 2006 Gherson reported the Home Office’s changes to the qualifying criteria (and to the relevant immigration rules) for leave to enter under the Highly Skilled Migrant Programme (HSMP). The changes increased the quota of points applicants needed to score in order to obtain leave to enter. Points which had been awarded under the previous tariff for work experience obtained in an applicant’s country of origin were no longer available.
What was immediately regarded as controversial was that the changes applied not just to people seeking leave to enter the United Kingdom under the HSMP. They also applied to applications for an extension of stay made by people what had already entered the United Kingdom under the scheme. If they could not show, when applying for an extension, that they had acquired the requisite number of points against the new criteria their applications were refused. As a consequence they would have no leave to remain in the UK and would have to leave or face removal.
The change in the position of the goalposts for those in the UK was perceived by many to be clearly unfair. The controversy was fuelled by the fact that the immigration rule under which they had applied for visas under the HSMP expressly required them to show that they intended to make the UK their main home (rule 135A (iii) of HC 395). Adhering to this requirement many people therefore sold their homes in their countries of origin and took their children out of school. Furthermore they had been told, in the guidance notes provided to them when they had made their applications, that any changes to the qualifying criteria made after they had entered the UK under the scheme would not affect them.
A consortium of affected individuals known as the HSMP Forum made an application for permission to apply for judicial review of the changes to the immigration rules. A letter before action was sent to the Secretary of State in January of 2007, and the application was lodged in the Administrative Court in February of 2007.
While the application was awaiting a decision in the Administrative Court, Parliament’s Joint Committee on Human Rights published its report into the rule changes. The Committee concluded that:
“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 Secretary of State responded to the Committee’s report in a Command paper (Cm 7268) laid before Parliament in November of this year. The Secretary of State states in that response that the changes to the HSMP did not affect the rights of those in the UK, which were protected by Article 8 of the European Convention on Human Rights and that the changes had not been “retrospective” in any event.
On 30 November 2007 Mr Justice Sullivan granted the application for permission to apply for judicial review. It is understood that the substantive hearing of the appeal is likely to be heard within two months.
