Successful challenge to HSMP Changes

The Asylum and Immigration Tribunal has allowed an appeal by a person who entered under the Highly Skilled Migrants Programme (HSMP) scheme and was then asked to leave the UK when the criteria for the programme were changed and he no longer qualified.

The appellant in GJ and others v SSHD [IA 03838/07] was an Indian national with an international career. When the UK government changed the rules for qualifying under the HSMP, GJ could no longer qualify. The UK government had said that people in this position could apply for leave to remain as a work permit holder, and this he did although he held no work permit. He was refused because he held no work permit. He had a right of appeal on the grounds that the decision breached his human rights under Article 8 of the European Convention on Human Rights, which protects rights to private and family life. This appeal succeeded.

GJ argued that he had a legitimate expectation that his leave would be extended, and that the interference with his right to private and family life when his application wa refused was disproportionate and therefore breached his human rights. He had sold his house and given up the job he had held for 13 years in a third country to come to the UK.

The immigration judge considered the HSMP application made by GJ, which required him to state that he intended to make the UK his main home and his country of habitual residence. The documentation given to applicants at the time of GJ’s application in summer 2005, when GJ applied, stated:

How will the revised HSMP affect me?

Not at all. It is important to note that once you have entered the programme you are in a category that has an avenue to settlement. Those who have already entered under HSMP will be allowed to stay and apply for settlement after four years qualifying residence regardless of these revisions to HSMP .

This guidance has since been changed. While the immigration judge considered the argument that the guidance in force when GJ applied stated only that the person would be ‘allowed to apply’ for settlement (Indefinite Leave to Remain, ILR), not that she or he would be granted settlement (indefinite leave to remain in the UK), he considered that this argument was ‘jesuitical in the extreme’. A person would have understood the paragraph to mean that the changes would not affect them. The immigration judge took into account that GJ had relied on the statement, giving up his job and selling his house.

The immigration judge made clear that he was not saying that changes to the HSMP were unlawful per se but that the changes were unlawful as they were applied to GJ because GJ was right to say that he had a legitimate expectation to remain. He considered that in GJ’s case the decision was not in accordance with the law, as is required by Article 8 ECHR.

The immigration judge acknowledged that the UK laws on legitimate expectation are complex. He therefore also considered the requirement under Article 8 ECHR that any interference with a person’s rights to family and private life must be proportionate to the reason for this interference, in this case maintaining UK immigration control. He found that it was not proportionate. The interests of GJ outweighed those of the government in maintaining immigration control. His appeal, and those of his wife and children, were allowed.

It is not yet known whether the Home Office will appeal the decision. They may be encouraged to do so because of the failure of another challenge based on legitimate expectation in the case of immigration rule found that postgraduate doctors and dentists and the organisations representing them. The High Court, a superior court to the Asylum and Immigration Tribunal held that the postgraduate doctors and dentists could not claim to have a legitimate expectation that they would be consulted on any rule changes in R (BAIPO Action Limited & Dr Imran Yousaf) v Secretary of State for the Home Department and Secretary of State for Health [2007] EWHC 199 (Admin).

GJ's case will be of interest to all those applying or thinking of applying, under the HSMP. Many potential applicants will be alarmed at the way GJ was treated: he gave up his house and his job and found himself expected to leave the UK after only a year. They will also be encouraged by his success on appeal.

The HSMP remains a very attractive scheme for highly-skilled individuals wishing to come to the UK. It allows them to come before they have a job offer, and to change employers, or work for more than one employer. It allows them to take up self-employment. These are very special advantages, and individuals will continue to want to take account of them. Perhaps the main lesson to be drawn from the case for those individuals, is that the Highly Skilled Migrants Programme is not as straightforward as it looks. It is not simply about adding up your points for salary, age and earnings and obtaining your visa; you need to consider what will happen in the future.

If you are in the UK as a highly skilled migrant and, like GJ, are adversely affected by the changes to the scheme, then it is strongly suggested that you take legal advice in the light of the decision in his case to examine the options open to you. If you are considering coming to the UK as a Highly-Skilled Migrant, then you should also take advice so that you understand your position fully, and can examine the risks as well as the advantages of the scheme in the light of your individual circumstances, and based on information about the system from people who are familiar with the way in which it is working.

The Financial Times newspaper reported criticisms of changes to the Highly Skilled Migrants Programme (HSMP) on 18 December 2006 in an article entitled ‘Lawyers attack ‘unfair’ points system’, the newspaper quoted Roger Gherson, the principal of Gherson and Co. and his criticisms of the changes.

The Home Office has recently announced that it aims to bring in Tier 1 of its new points-based system, dealing with Highly Skilled Migrants, at the beginning of 2008. In an article on this website on 7 November 2006 entitled ‘The Highly Skilled Migrants Programme: The longer term view for employers and highly skilled migrants’ we wrote:

'The Home Office stated in their announcement: 'these changes will inform the decisions the Government will take towards establishing the new five-tiered Points Based System for all migration routes to the UK to work or study by April 2009', thus sounding a warning that the scheme may change again, perhaps many times, until the government are satisfied that they have got it right. What are the implications of this uncertainty for would-be highly-skilled migrants and those who wish to employ them?

The HSMP is the only 'points-based part' of the current system. The changes to the scheme announced on 7 November mean that it will closely resemble the proposed "Tier 1" of the Points-based system, expected to be the first part of the Points Based system to be introduced. The changes thus appear to be a trial run for the Points Based system; a chance for the government to check that it has the criteria right before starting to implement that system. If the government decides that it does not have the criteria right, for example if it finds that the new criteria exclude people whom the UK wants to attract, or include too many people who are not bringing unique skills but competing with resident workers for jobs, the criteria are likely to be changed again...and again. The result? People admitted to the UK as highly-skilled migrants may find that when they come to apply to extend their stay, they no longer qualify in that category. If the UK is failing to attract the people it wants, the government may wish to adjust the scheme.If very large numbers of people qualify under the scheme and are felt to be competing with, rather than complementing, the UK and European Union workforce, the government may wish to make it harder to qualify under the scheme, or even consider imposing a limit upon the numbers who can qualify
The intention is that applications under the Points Based System will be processed by Entry Clearance Officers at British Embassies and Consulates abroad, whereas HSMP applications are processed by Work Permits UK, which has specialised in this type of application for a long time. If the government decides to introduce a more complex scheme, or more complex evidential requirements, it would seem likely that it will want to try these out while the experts are still dealing with the applications.'

This is the kind of analysis and information, carefully applied to the facts of your individual situation, that you need to take into account when deciding whether the HSMP is the best option for you.