Upcoming judicial review of HSMP visa changes in the UK

The High Court of the United Kingdom will conduct a judicial review on the 14th and 15th of June regarding controversial changes to the Highly Skilled Migrant Programme (HSMP) implemented last December. The High Court will consider and decide whether the Home Office had the right to impose new immigration rules retrospectively upon highly skilled immigrants already in the UK.

The judicial review will focus on the retrospective changes to the qualifying period for Indefinite Leave to Remain (ILR) - increased from 4 to 5 years - for holders of employment and British ancestry visas. However, the evidence in the case will call into question the legal limbo that thousands of HSMP visa holders currently face over a number of other changes.

Moving the goalposts

<$adv0> The retrospective aspect of the new changes have caused a furor among immigrant groups.

"These changes forced thousands of skilled migrants to leave the country at short notice and caused a lot of hardship even to those still allowed to stay," says Mikhail Spivakov, coordinator of action group Voice of Britain's Skilled Immigrants (VBSI).

"We do not object to the Home Office changing the rules from time to time, but they should do so in a fair and lawful manner. Moving the goalposts mid-play is highly unfair," he added.

The HSMP scheme is a points-based system for immigration from outside the European Union and European Economic Area used to assesses criteria such as an applicant's skills, experience, age and education. If an applicant scores enough points, they can migrate to the UK under the HSMP visa to look for employment. The visa can be renewed and the program is considered a viable path to settlement for highly skilled migrants.

The HSMP visa in particular is exceedingly popular since it allows a holder much greater flexibility in the type of work they do and does not tie them to a specific employer.

Immigration changes

Several other countries, namely Australia, Canada and New Zealand, all use a points-based evaluation system. Some other countries also use points systems, but the important trend to notice is that most countries are looking to the success of this method and are increasingly adopting it.

For example, the United States is currently debating immigration reform, and using some form of points-based system in the future is virtually a certainty.

Since its inception in 2002, the HSMP has undergone three major changes, with the latest changes announced on 07 November 2006. The announcement was shocking, catching most people in the immigrant community off-guard. The Home Office suspended the program without notice effective immediately on 07 November, refusing to accept new applications until 05 December, 2006.

All applications received on or after 05 December are subject to the new rules.

The sticking point is that, all persons who had been approved for an HSMP under the old rules prior to 05 December are retrospectively forced to get their HSMP extension using the new criteria. Applicants unable to score the required amount of points when it comes time to renew their visa would be required to leave the UK, if they are unable to manage coming under a different visa category, such as a normal work permit.

An estimated 16,000 or so immigrants are unable to qualify for the HSMP extension after the changes. Some sources are claiming up to 40,000 may be "affected."

The main argument for the unfairness of the changes is that immigrants currently in the UK under HSMP were given an 'expectation' under 'good faith' that they would have a path to permanent settlement by deciding to make the move to Britain. Many people uprooted their lives, left their jobs, sold their homes in their country of origin and have brought their families to the UK.

"We have strong evidence that the Home Office breached the migrants' substantive legitimate expectation," said solicitor Stephen Kong, pursuing the Review on behalf of the affected immigrants.

This judicial review in focus

It must be stressed that the judicial review will not specifically examine the HSMP changes. It is examining the changes implemented at the same time to extend the pre-requirement to obtain ILR, and the fact that they were made retrospective.

A ruling against the retrospective application of the changes might then be a possible argument in a separate case regarding HSMP holders caught up in the HSMP changes. The changes to the HSMP scheme may not fully comply with the requirements of the Race Equality Duty, which could potentially be basis to have the changes themselves ruled illegal

Last month another immigrant caught up in the HSMP row received a favorable ruling by a tribunal court on the basis of a violation of his human rights.

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