No appeal by government from HSMP success in Administrative Court

In a judgment handed down on 8 April 2008 Sir George Newman granted the HSMP Forum’s application for a declaration that the Secretary of State had unlawfully applied the changed provisions of the Highly Skilled Migrant Scheme to people who had entered the United Kingdom under the previous requirements of the scheme.  The judge found that due to the terms of the guidance provided to the applicants when they entered the UK under the HSMP they had legitimately expected that their applications to extend their stay in the UK would be considered under the same criteria which had applied when they had been granted leave to enter.  His crucial conclusion was:

“I find that the terms of the scheme, properly interpreted in context and read with the guidance and the rules, contain a clear representation, made by the defendant, that once a migrant had embarked on the scheme he would enjoy the benefits of the scheme according to the terms prevailing at the date he joined.”

In applying altered and more stringent criteria to the applicants’ applications for extensions of their leave to remain the Secretary of State had therefore acted unfairly in a manner which amounted to an abuse of power.  The judge stated that he could not see any sufficient public interest which was capable of outweighing the unfairness that the application of the changed criteria caused to the applicants. 

It has now been reported (in the Times on Friday 18-4-2008) that the Secretary of State does not intend to seek permission to appeal to the Court of Appeal against Sir George Newman’s judgment and his order granting a declaration in favour of the applicants. 

As Sir George Newman noted in his judgment - before him the Secretary of State relied, via her counsel, upon the reasoning of the Asylum and Immigration Tribunal in AA and Others (Highly skilled migrants: legitimate expectation) Pakistan [2008] UKAIT 00003 (21-12-2007).     Although Sir George does say so in terms in his judgment – it must follow that the Tribunal’s conclusion that AA and others had no legitimate expectation (that their applications for further leave to remain would be considered under the same criteria as had existed when they applied for and obtained leave to enter the UK) was wrong. 

Anyone who has been refused an application for an extension of stay and has had an appeal against such a decision dismissed  – whether due to the Asylum and Immigration Tribunal’s having followed AA & others or not – should seek professional legal advice in the light of Sir George Newman’s judgment and the fact that there will be no appeal against it by the Secretary of State. 

Gherson has been monitoring the progress of the legal challenges to the Secretary of State’s change of the criteria in November 2006.  Its lawyers are ideally placed to provide such advice.