QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of
HSMP FORUM LIMITED
|- and -
|SECRETARY OF STATE FOR THE
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Solicitors) for the Claimants
Robert Jay QC and Sam Grodzinski (instructed by the Treasury Solicitor)
for the Defendant
Hearing date: 5th March 2008
Crown Copyright ©
Sir George Newman :
"This programme is a new way of allowing individuals to migrate to the United Kingdom. It aims to provide an individual migration route for highly skilled persons who have the skills and experience required by the United Kingdom to compete in the global economy".
"Should this occur those already in the United Kingdom, as skilled migrants, will continue to benefit from the programme's provisions."
This statement confirmed, at least in connection with closure or suspension, that the benefits conferred by the scheme and to be enjoyed by skilled migrants already in the United Kingdom were continuing in character. The statement is consistent with the stated aims of the programme and its framework involving continuity, structured from the date of a migrant's original admission, through stages of extension, leading to ultimate settlement.
"The HSMP requirements may change in the future. The immigration rules, which provide for entry into the UK under immigration categories including the HSMP, are also subject to change. The criteria for HSMP extensions may also therefore be subject to change in the future."
Within the allegation of unfairness there are two subheadings, namely legitimate expectation and abuse of power. Within the allegation of unreasonableness the claimants also rely on (i) anxious scrutiny and (ii) failure to treat prior admissions differently. Within the allegation of unlawfulness the claimants rely on (i) the principle of legality and (ii) the Race Relations Act 1976, section 71.
Summary of the Original Scheme
"Q. What kind of work can I do?
A. You can undertake any work, for example it could be as an employee, a contractor worker or on a self-employed basis. However, you will be expected to work at a level appropriate to your skills and this will be important when you renew your application to stay in the United Kingdom under the scheme".
It is not clear what importance was to be placed upon this for there is no reflection in the immigration rules of this expectation. And in the same section the question "What will I need to do to qualify to stay after the first 12 months?" was answered in this way:
"A. You will need to show that you are working in a job that is appropriate to your qualifications and experience and that you will continue to be able to do that kind of work. For example if you entered on the basis of your experience in civil engineering you would be expected to be working in the area of engineering or make use of those skills. You will also need to show that you and your family have not had to have any need to use public funds and have not been involved in any criminal activities. Applications are made directly to the Home Office and details on how to do this will be provided when your initial application is approved."
"In addition to scoring at least 75 points in the above areas you will also need to demonstrate:
1. Your ability to continue to work in your chosen field in the United Kingdom.
2. That you have enough savings and/or potential income to be able to support yourself and your family. You will not be allowed any use of UK public funds (for example income support) whilst in the United Kingdom with permission to stay under the programme.
3. That you are willing and able to make the United Kingdom your main home. We will ask you to provide a written undertaking to that effect. You will be expected to make the UK your country of habitual residence….".
"…. On this you will need to declare that you and your family have not had access to public funds and have not received a prison sentence. In addition you will be asked to provide evidence of your economic activity during your period of stay in the UK and evidence of your personal earnings during the period, if you are employed. If you are self-employed you will need to supply evidence of the progress of the business …".
"You will be expected to have been economically active in the UK in employment, self-employment or a combination of the two for at least some of the time within the twelve month period before you apply for further leave to remain. If you have been unable to put your business or employment plans into operation we will expect you to provide evidence (e.g. several completed job application forms or a business plan) that you have taken all reasonable steps to become economically active in the UK and what steps you are currently taking".
It can be seen that, despite the hope and expectation and intent on both sides that the chosen field of employment would be taken up, it was accepted also that circumstances might prevent that occurring within the first 12 months and, so long as reasonable steps had been taken, that would not prevent an extension being granted.
"Q. I have already applied successfully under HSMP. How does the revised HSMP affect me?
A. Not at all. It is important to note that once you have entered under 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 revisions to HSMP."
This question and answer followed upon a question and answer containing a reservation of a right to change the scheme.
The New Scheme
- "The criteria were not the best indicators of economic success. This meant the scheme was not always fully effective in its aim of attracting and selecting the most highly skilled migrants to the UK.
- There was no robust test at the extension stage that assessed how migrants performed in the UK labour market resulting in some migrants being granted an extension to remain even if they were not contributing effectively to the UK economy."
"There is no one definition of whether an applicant was performing highly skilled work. However salary levels and job titles are significant indices in helping to assess whether someone is in highly skilled work. When the data taken from the sample was analysed overall, many of the jobs being done by FLR applicants did not appear to be highly skilled and thus did not meet the objectives of the HSMP."
In the light of these conclusions it was decided to make a number of changes, including refocusing the initial points test on objective attributes, which it was believed would better predict labour market success and "introducing a points test at the extension stage". The statement continues:
"It was considered that the previous extension test, whereby it was simply enough for the applicant to have taken all reasonable steps to become lawfully economically active since his arrival in the UK, had not proved to be a sufficiently robust measure of whether the applicant had been making an economic contribution to the UK as a highly skilled migrant."
Application to those Successfully Admitted Under HSMP
"We carefully considered whether or not to apply the extension/FLR test only to those migrants who were new to the HSMP from December 2006. We did not expect that everyone would be able to pass the new test...
16. Recognising however that there would be a number of HSMP migrants who would face difficulties in meeting the new FLR test, but conscious of the overall policy aim of only granting work based Leave to Remain to those who were genuinely making a significant contribution to the economy, we introduced extensive transitional arrangements dealing with those in employment (making the process of switching into Work Permit employment easier), as well as addressing the position of self-employed people and independent contractors…"
"Ultimately, we were not persuaded of the need to restrict the FLR test to new applications. Primarily, this was because we considered that the new FLR test, in combination with the transitional arrangements (in particular allowing an easy entry to the Work Permits scheme for those who did not qualify for HSMP FLR), meant that only a small percentage of people would actually have to leave the country, and that those who did would be very clearly those who were not making a contribution to the UK economy that had been expected of them when they were granted initial HSMP approval. The only people who would have to leave would be those who did not meet the new HSMP points test, and those doing insufficiently skilled jobs to qualify for Work Permits or whose employers chose not to apply for work permits for them (a decision over which he had no control). This view has been borne out by subsequent statistical evidence, as explained further below.
18. Further, it would have taken at least 5 years for the rules change to achieve the intended policy outcome of ensuring that those passing an extension test were those making the greatest contribution to the UK economy."
"… individuals with leave to enter or remain under the HSMP have taken a number of important and long-term steps to establish their main home in the UK: they have left permanent jobs in their home countries, sold their homes, relocated their families (spouses and children) to be in the UK also, entered into financial commitments such as mortgages, transferred businesses, entered into long-term financial arrangements, made long-term economic and contractual plans, and the lives of their families have been transferred (for example, spouses have new jobs, children new schools)."
This conclusion echoes the terms of a letter dated 16 November 2006 from the Immigration Law Practitioners Association to the Minister (see paragraph 24 below).
The Committee went on to state:
"The immediate effect of the tightening of the requirements for extending leave is to make it likely that a considerable number of those highly skilled migrants who have moved to this country and made it their main home under the HSMP will not now be eligible for further leave when their current period of leave expires …".
"… there are a number of issues that I feel it is important to clarify. Firstly, you mention that the Committee is concerned about the 'retrospective application' of the changes to HSMP. These changes do not have retrospective application. A migrant with initial leave will not have that grant of initial leave re-assessed. The new extension test applies to all those who choose to take the test from the date it was introduced – there is no retrospective element in these changes."
The Committee dismissed the Government's arguments on these grounds:
"….. changing the relevant criteria to be met by those who have already made their home in the UK on a clear understanding of the criteria that would be applied to them in the future is, in our view, indisputably retrospective in effect."
"We have made these changes in order to make sure that the people who succeed under the programme are those who will make the greatest contribution to the UK economy, to make the requirements clearer and more objective and to make sure that the programme is robust against abuse."
"I do not accept that those who receive a grant of leave in a category have a legitimate expectation that the rules for further grants of leave within that category which existed at the time of their first grant of leave will apply to them for the rest of the time that they spend in the UK. The rules must be capable of being changed from time to time so that the Government can carry out its policies – in this case, to ensure that those granted further leave to remain under HSMP will benefit the UK economy. The power to make changes to the Immigration Rules, as laid out in the Immigration Act 1971, is not restricted to changing the rules for entry, or to changing the leave to remain rules only for those who obtained leave to enter when those were in force. The only expectation which applicants should have is that the rules and policies which are in force when their application is decided will be correctly applied to them.
8. Indeed, it has never been guaranteed that applicants would qualify for further or indefinite leave to remain, so there has always been the risk of not qualifying for further leave. We have merely tightened up the rules. I also do not believe that this is incompatible with the requirements under HSMP to have made the UK your main home. This does not require the severing of all connections with the country of origin and refers to the need to make the UK your main home during the course of your leave, which is necessary for highly skilled migrants."
The Transitional Measures
(1) the resident market test (the requirement to advertise the post to prospective UK and European Economic Area nationals in advance of the application) will be waived, provided that the applicant has been in post for at least eight months, if the grant of leave was for 12 months or less or at least 12 months if their grant of leave was for more than 12 months.
(2) employers are to have a period of grace, namely 42 days from the date of the letter telling the applicant that they did not pass the points test to apply for a Work Permit. A self-employed person who does not pass the points test on an application for an extension could be granted leave under the transitional arrangements for self-employed people subject to conditions being satisfied.
The Impact of the New Scheme
The Race Equality Impact Assessment (the REIA)
"We do, however, expect a reduction in the number of successful applications for extensions of leave, because the new test is more arduous than the old one. However, we hope to retain most people who are currently in the UK with leave to remain under the HSMP and who are employed, self-employed or working as independent contractors, but who will not pass the new test. Those who do not succeed under these transitional arrangements (i.e. those who are unemployed or having been working for very short periods) are not people who will benefit the UK economy."
The assessment noted:
"Overall, the change will therefore work to the relative disadvantage of non EEA nationals and, conversely, to the relative advantage of EEA nationals, but the effect will not be great."
(1) the existence of clear, express representations that the criteria for the grant of extensions would not be changed so as to preclude settlement being obtained in circumstances where it had been represented it would be available;
(2) the clear practice prior to November 2006 that revisions to the scheme were not to affect those already on the scheme;
(3) the conspicuous unfairness involved in encouraging migrants to sever links with their home country and to make the UK their main home, by issuing statements about their future entitlement to remain in the UK and thereafter subsequently withdrawing the applicability of the statements;
(4) the absence of any pressing public interest requiring that she should frustrate the expectation of highly skilled migrants who had met the criteria of the scheme which they had joined;
(5) the abuse of power involved in frustrating the migrants' path to final settlement in the UK when the migrants had already embarked on the journey.
"Their only legitimate expectation is that their applications will be judged on the basis of the rules and criteria under the HSMP in force at the relevant time, namely the date of any decision". (para 95).
(1) The scheme represented a change in the policy of controlling immigration.
(2) The policy was designed to target a particular group of migrants and to encourage them to come to the UK to assist the UK economy.
(3) The scheme was not composed of severable parts but of interlocking provisions. Once a migrant had joined the scheme he was entitled to enjoy the benefits of the scheme according to its terms. He was obliged to establish a migrational intent to make the UK his main home.
(4) Participation in the scheme was designed to provide a path to settlement and once a migrant had embarked on the scheme it was intended that he should carry the expectation of attaining settlement. That was the purpose of the scheme.
"those already in the United Kingdom, as Skilled Migrants, will continue to benefit from the programme's provisions".
The later guidance stated in answer to the question "What if the scheme changes?" and "I have already applied successfully under the HSMP. How does the revised HSMP affect me?"
"A. Not at all. It is important to note that once you have entered under the programme you are in a category that has an avenue to settlement. Those who have already entered under the HSMP will be allowed to stay and apply for settlement after 4 years' qualifying residence regardless of revisions to HSMP".
Overriding Public Interest
(1) there are cogent macro-political reasons for applying the new and more robust test to all HSMP migrants and not just those who have applied post November 2006;
(2) between January 2002 and October 2006, 49,188 applications were granted;
(3) the Court should not adjudicate on the economic interests of the UK;
(4) account should be taken of the transitional arrangements.
(1) the number of migrants likely to be removed is small; and
(2) an appreciable number will be able to remain under the Work Permit scheme.
The macro-political aspect of the changes rests with the stated objective of introducing a more effective and robust scheme. That is not to any degree undermined by a small percentage who are not making the contribution expected of them and when the level of contribution meets that originally set by the scheme.
The Race Relations Act 1971