England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/04/2009

Mrs. Justice Cox :

Introduction

1. The Claimant, HSMP Forum (UK) Limited, is an incorporated organisation formed to support and assist skilled migrants currently in the United Kingdom. The majority of its members came to the UK under the Highly Skilled Migrant Programme (HSMP) introduced by the United Kingdom Government in January 2002. Under this scheme, people were encouraged to come to the UK if they could meet the criteria identified and qualify for migration. The mutual benefits of the HSMP were expressed as follows:

"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."

2. In this application for Judicial Review the Claimant is challenging the policy document, "HSMP Forum Limited: policy document", adopted by the Defendant on 9 July 2008. This document was adopted following a previous, successful application by the Claimant for Judicial Review [2008] EWHC 664 (Admin) in which Sir George Newman decided, on 8 April 2008, that the Defendant had acted unlawfully in applying to people who had already been admitted to the HSMP, as at 7 November 2006, the changes to the programme set out in Immigration Rules HC 1702 (Rule 135D). The Defendant did not appeal against that decision, but adopted new policy guidance on 9 July 2008, which purported to give effect to it.
3. The Claimant's written grounds of challenge are based on what are said to be unlawful shortcomings in this policy guidance, following the earlier judgment, in relation to two issues. First, it fails to deal with an earlier change made to the HSMP, on 3 April 2006, increasing the qualifying period for settlement (indefinite leave to remain) from 4 to 5 years, a change which the Claimant contends should not apply, but is being applied, to those who were already on the programme before it came into force. Secondly, those members of the HSMP who, relying on the earlier judgment, applied for settlement after 4 years on the scheme, have not only had such applications refused, but have also not been given a further year's leave to remain, to enable them to complete the 5 years; and have also been told that their continued presence here is unlawful, and that they are liable to removal unless successful on appeal.
4. In granting permission to apply on 27 November 2008, Stuart Isaacs QC (Deputy High Court Judge) refused the Defendant's application for an extension of time for filing her Acknowledgment of Service and ordered that:

"The Defendant's position can be ventilated at the Judicial Review hearing subject to her compliance with CPR Part 54.9 (1)(b)."

5. The Defendant's detailed grounds for resisting the claim, together with the written evidence relied upon, were not however served until 4 March 2009, and therefore long outside the 35 days from service of the Order granting permission required by rule 54.9(1)(b).
6. Mr Moffett, who appears for the Secretary of State, in apologising to the Court for the delay, explained that there had been further written applications made for an extension of time, not responded to; that no prejudice was alleged to have been caused to the Claimant; and that the reason for the delay was the decision by the Secretary of State, after considering the Claimant's grounds of challenge, to adopt further policy guidance addressing the position of those people who had joined the scheme prior to 3 April 2006.
7. In the circumstances I extended time for service of the grounds of resistance. The proposed, further guidance has now been set out in the letter to the Claimant's solicitors dated 19 February 2009, in which it is suggested that the guidance addresses the Claimant's grounds for challenge.
8. The details of that proposed policy include the following:

"1. The policy will apply to persons who, before 3 April 2006 (the date on which the increase in the qualifying period for ILR came into effect), were granted further leave to remain for a period of three years pursuant to the HSMP, but had not yet (as of 3 April 2006) reached the qualifying threshold for settlement.

2. Such a person will be entitled to apply for a further year's leave to remain in order to enable him to complete the qualifying period for ILR. Save as set out … below, such a person would not have to meet any particular test (such as, for example, an 'economic activity' test) for their application to be successful.

3. If the person to whom the policy applies has already made an application for ILR but has had that application refused because he had not completed the qualifying period, he will be entitled to apply for a further year's leave to remain in order to enable him to complete the qualifying period. Such an application would be considered on the same basis as set out in point 2 above."

9. Mr Fordham QC, for the Claimant, submits that, whilst the Defendant appears to have recognised the validity of the Claimant's criticisms, there is however "one inexplicable shortcoming" in this proposed policy, since it applies only to those who, before 3 April 2006, had been granted a total of 4 years' leave to remain (that is the one year initial period and further leave to remain for a period of three years). In order to be lawful he submits that such a policy must apply to all those persons who were admitted to the HSMP before 3 April 2006.
10. The central issue in this case is therefore whether, in dealing with all those skilled migrants who joined the HSMP before the qualifying period criterion for settlement changed on 3 April 2006, the Defendant is entitled to apply to them the new qualifying period of 5 years, as she contends; or whether, in failing to apply to them the 4 year criterion which applied when they joined the scheme, she has acted unlawfully. A declaration is sought in this Court that the policy document of 9 July 2008 ought to make provision for all persons, who entered the scheme before April 2006, to be able to qualify for settlement after 4 years qualifying residence, regardless of revisions to the HSMP. The Claimant contends that, in failing so to provide, the Defendant has acted unfairly and contrary to the legitimate expectation of all those members who joined the programme before 3 April 2006.
11. This, as Mr Fordham points out, is very much a live issue. Skilled migrants are presently residing in the United Kingdom and are candidates for settlement now; and the Defendant has stated her intention to adopt a further policy in the letter of 19 February 2009.
12. It is common ground that the Defendant had regard to the judgment in the first Judicial Review and to its implications. The policy document under review in this case was produced expressly "to give effect to the High Court's judgment" (paragraph 7). The judgment and the HSMP therefore lie at the heart of this case.

The Original Scheme

13. The HSMP guidance, published originally in January 2002, contained the following relevant passages:

"The programme is designed to allow individuals with exceptional personal skills and experience to come to the United Kingdom to seek and take work…

… 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 …

…If your application is successful you will be given permission to enter the United Kingdom for a period of 12 months. Towards the end of that period you will be able to apply for further permission to stay as a highly skilled migrant. You should apply directly to the Home Office. If your application is approved you will normally be given permission to remain for a further 3 year period. Details on the application process will be provided to successful applicants. If you have been granted permission to stay in the United Kingdom as a skilled migrant for 4 years and wish to remain in the United Kingdom on a permanent basis you can apply at the end of the 4 year period for permanent residence (otherwise known as indefinite leave to remain or settlement). Your family will also be able to obtain permanent residence with you

…

Q: How long can I stay in the UK if I enter as a skilled migrant?

A: You will initially be given 12 months' stay, towards the end of that period you can apply to remain in the same capacity for a further period of up to 3 years. After 4 years in the UK as a highly skilled migrant you can apply for settlement.'"

14. Guidance as to a revised HSMP, effective from 28 January 2003 (the revisions made then are irrelevant to this case) included the following passages:

"Extension of Stay in the United Kingdom …

If you have been granted permission to stay in the United Kingdom as a highly skilled migrant for four years and wish to remain in the United Kingdom on a permanent basis you can apply at the end of the four year period for permanent residence. This is otherwise known as indefinite leave or settlement

…

Q: Do I need a job before coming to the United Kingdom?

A: No, you do not need a job before entering the United Kingdom as a highly skilled migrant. We will however ask if you have a job offer and what efforts you have made so far in finding work in order to assist our assessment of your ability to maintain and accommodate yourself and family and continue your chosen career.

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 12 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 (eg 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.

…

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."

15. In further revisions introduced in October 2003 (irrelevant to this case) this last Question and Answer was repeated at Q 24.10, with the following additional answer given to Q 26.5:

"Q: How long can I stay in the UK if I enter as a skilled migrant?

A: … after 4 years in the UK as a highly skilled migrant you can apply for settlement. The main criteria for settlement will be that you have spent a continuous period of 4 years in the UK (except for trips abroad of 3 months or less, totalling less than 6 months in the 4 year period) in a category leading to settlement and that you continue to be economically active in the UK as a highly skilled migrant."

16. Meanwhile, from April 2003, the HSMP was enshrined in the Immigration Rules (HC 583, Rules 135A-H), which identified three stages along the avenue to settlement for highly skilled migrants.
17. Rule 135A set out the requirements to be met by a person seeking leave to enter as a highly skilled migrant, namely that the applicant:

"(i) must produce a valid document issued by the Home Office confirming that he meets, at the time of the issue of that document, the criteria specified by the Secretary of State for entry to the United Kingdom under the Highly Skilled Migrant Programme; and

(ii) intends to make the United Kingdom his main home; and

(iii) is able to maintain and accommodate himself and any dependants adequately without recourse to public funds; and

(iv) holds a valid United Kingdom entry clearance for entry in this capacity."

18. Rule 135B provided for an initial entry period of 12 months. Rule 135E provided for an extension of stay, for a period not exceeding three years, provided that the Secretary of State was satisfied that the applicant:

"(i) has leave to enter or remain in the United Kingdom, other than as a visitor under paragraphs 40 to 56 of these rules; and

(ii) in the case of an applicant who has leave under paragraph 135B has already taken during his period of leave all reasonable steps to become lawfully economically active in the United Kingdom in employment, self-employment or a combination of both; and

(iii) meets the requirements of paragraph 135A(i)-(iii)."

19. The final stage of indefinite leave to remain as a highly skilled migrant was dealt with at Rule 135G as follows:

"135G. Indefinite leave to remain may be granted, on application, to a person currently with leave as a highly skilled migrant, provided that he:

(i) has had a continuous period of at least 4 years' leave to enter or remain in the United Kingdom in this capacity, or has had a continuous period of at least 4 years' leave to enter or remain in the United Kingdom which includes periods of leave to enter or remain granted under paragraphs 128 to 319 of these Rules; and

(ii) for the period of leave as a highly skilled migrant, has met the requirements of paragraph 135A (i)--(iii); and

(iii) for any period of leave not in this capacity, has not had recourse to public funds; and

(iv) is lawfully economically active in the United Kingdom in employment, self-employment or a combination of both."

20. Rule 135H provided that indefinite leave to remain was to be refused if the Secretary of State was not satisfied that each of the requirements of Rule 135G was met.
21. Further guidance, published in April 2005, stated at paragraph 20:

"… to qualify for settlement in the UK you must have spent a continuous period of four years in the UK except for short holidays or business trips. Any secondment that requires you to be outside the UK for an unbroken period of over three months will make your previous stay in the UK ineligible as a continuous period in the UK."

and, further, at paragraph 56:

"If you have been granted permission to stay in the United Kingdom as a highly skilled migrant for a total of four years and wish to remain in the United Kingdom on a permanent basis you can apply at the end of the four-year period for permanent residence. This is otherwise known as indefinite leave or settlement. The main criteria for settlement will be that you have spent a continuous period of four years in the UK (except for trips abroad of three months or less, totalling less than six months in the four-year period) in a category leading to settlement. You must also be able to demonstrate that you can continue to be economically active in the UK as a highly skilled migrant."

Further guidance, issued in October 2005, repeated the same information in the same terms, appearing again at paragraph 56.

The Changes

22. By changes to the Immigration Rules, which came into effect on 3 April 2006, the qualifying period for indefinite leave to remain, as set out in Rule 135G(i), was increased from 4 years to 5 years. At the same time Rule 135B was amended, so as to provide that an initial grant of leave to enter would be made for 2 years instead of 12 months. Published guidance effective from 3 April 2006 referred, at the new paragraph 56, to the necessity for a continuous period of 5 years in the UK as "the main criteria" for settlement.
23. Richard Short, Assistant Director in the UK Boarder Agency, states, in his witness statement prepared for this hearing, that the qualifying period was similarly increased for persons who had leave to enter or remain pursuant to most of the other employment categories in the Immigration Rules; and that this increase had been announced in Parliament in February 2005, and again, later on during that month, in the Home Office document "Controlling Our Borders: Making Migration Work for Britain – a Five-Year Strategy for Asylum and Immigration."

The Previous Judgment

24. The application for Judicial Review before Sir George Newman arose out of changes to the HSMP, which came into force on 7 November 2006. So far as relevant, these changed the criteria for extensions so that, instead of the requirement for an extension being the taking of "all reasonable steps to become lawfully economically active", the new scheme involved an updated reapplication of the new points test criteria applicable on entry. Thus, in order to stay on, an equivalent points score was required, based on qualifications and past earnings achieved in the UK, along with a mandatory English language requirement. These new criteria required an amendment to the Immigration Rules, and they were to apply to migrants already in the UK and on the HSMP, as well as to new entrants.
25. In considering the issues, Sir George Newman described the general scope and operation of the scheme. He referred to the inquiry into the November 2006 changes by the Parliamentary Joint Committee on Human Rights, which resulted in a finding that the new rules were retrospective in effect and could not be justified as proportionate. The witness evidence filed by the Secretary of State in the claim acknowledged that the tightening of the requirements would mean that highly skilled migrants would not now qualify for an extension or for settlement where, under the scheme prevailing at the time of their entry, they would have done so.
26. The judge described as "unsatisfactory" the Defendant's response both to the Committee's observations, and to the legitimate expectation that the highly skilled migrants were said to be entitled to rely upon, referred to in a letter written by the Immigration Law Practitioners' Association. At paragraph 26 he observed that:

"The point being made was that the old scheme constituted an integrated and entire programme and that it was not open to the Government to alter the terms and conditions upon which the pre-arranged stages were to be implemented."

He identified the real issue in the case as being:

"Whether acceptance under the old scheme conferred fixed benefits upon a migrant for the duration of the scheme."

and at paragraph 28 he said this:

"In my judgment, proper consideration of the Claimant's complaint requires due weight to be given to the character and purpose of the scheme. I am satisfied that migrants were encouraged to enter the scheme, not simply because they would gain admission for one year, but because, in accordance with conditions and criteria which were set out and offered to them, they would obtain, if the conditions and criteria were met, an extension of leave to remain and ultimately settlement. Obviously they were not 'guaranteed' an extension or settlement, because they had to meet the conditions and criteria which had been laid down. But, equally, they were being told that if they met the conditions they would be entitled to remain. I am wholly unimpressed by the attempt to interpret the scheme as a commitment only to the terms of entry and only those terms could not subsequently be altered. The real question is whether, properly interpreted, the scheme conferred a commitment on the part of the Government not to change the conditions in connection with the continuing implementation of the scheme."

27. In addressing whether the facts and circumstances founded any one or more of the legal challenges the judge emphasised that the Defendant's discretionary power to make changes to the scheme under which highly skilled migrants would be admitted to the UK was not under challenge. Rather, the conflict to which the case gave rise required the Court to:

"….establish a balance between the importance of preserving the Defendant's right to exercise her discretionary powers in the field of immigration control and the desirability of requiring her to adhere to the statements or practice announced in connection with the original HSMP."

28. Counsel for the Secretary of State had submitted that no clear and unequivocal representation had ever been made, to the effect that the criteria to be applied to 'further leave to remain' extension applications would remain unchanged; and that the only legitimate expectation of the skilled migrants was that their applications would 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.
29. At paragraph 52 the judge held that the correct answer to the "dispositive" question, 'to what has the Authority committed itself?' required:

"A contextual analysis of the purpose and terms of the HSMP up to November 2006, not a textual analysis of its parts interpreted in isolation from the other parts of the scheme."

His analysis was as follows:

"(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."

30. In the paragraphs which followed, the judge referred to relevant passages in the guidance, including the question and answer set out above at paragraph 14 above. He considered that the important note, expressed in general terms, that "once you have entered under the programme you are in a category that has an avenue to settlement," accurately described the character and intended manner of operation of the scheme.
31. At paragraph 57 he concluded as follows:

"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."

32. The judge was unpersuaded by the Defendant's submission that there were, in any event, cogent macro-political reasons for applying the new and more robust test to all HSMP migrants, and not just those who had applied post November 2006. Rejecting the particular reasons advanced, the judge held at paragraph 61:

"I am unable to see a sufficient public interest which outweighs the unfairness, which I am satisfied the changes visit upon those already admitted under the programme. In the circumstances, I am satisfied that the terms of the original scheme should be honoured and that there is no good reason why those already on the scheme shall not enjoy the benefits of it as originally offered to them. Good administration and straight forward dealing with the public require it. Not to restrain the impact of the changes would, in my judgment, give rise to conspicuous unfairness and an abuse of power. Bad faith, rightly, has not been alleged, but I am concerned about the repeated refusal to consider the undeniable evidence of hardship, and the extent of the special commitment required of those migrants, which has been placed before the Defendant from a number of quarters."

33. He therefore expressed himself satisfied that the Defendant was proposing to act unlawfully and that the Court should intervene. The Defendant, having considered the judgment, decided not to appeal against it.

The Present Challenge

34. There is no dispute that, following this judgment, the Secretary of State recognised the need, (a) to adopt an appropriate policy to deal with all those skilled migrants who had joined the HSMP after its commencement and before the Rule changes in November 2006; and (b) to give effect to the judgment.
35. The new policy guidance states, at paragraphs 5–7:

"5. The HSMP Forum Limited brought a Judicial Review on the grounds (amongst others) that migrants who had already joined the HSMP before the Immigration Rules changed had a legitimate expectation that the new extension test requirements would not be applied to them.

6. On 8 April 2008 the High Court ruled in favour of the HSMP Forum Limited on this point.

7. This policy document has been produced to give effect to the High Court's judgment."

36. The guidance sets out the approach that the Defendant will adopt in relation to applications for an extension of stay made by particular categories of HSMP members or former HSMP members. It is not in dispute that this guidance is silent as to the effect of the changes made to the qualifying period for settlement, on 3 April 2006, upon those who had joined the scheme before that date. The proposed policy referred to in the recent letter of 19 February 2009 purports to address the Claimant's criticisms made in this challenge.
37. In resisting the Claimant's challenge, Mr Moffett no longer pursues the point advanced at paragraph 28 of his skeleton argument, namely that it is now too late for the Claimant to challenge changes made to the Immigration Rules in April 2006, which it is lawful for the Defendant to continue to apply unless and until they are quashed. Since the Claimant was granted permission to apply, he no longer pursues a delay point. In any event, the Claimant is not seeking an order quashing the rule changes per se. It is accepted that all those who joined the HSMP after those changes were made did so on the basis of the new qualifying period of 5 years. The issue in this challenge, as in the previous Judicial Review, is whether the changes can lawfully be applied to those who were already members of the programme as at the date of the changes. The Claimant, relying on the previous judgment, submits that the clear answer is that they cannot.
38. The submissions advanced by the Secretary of State in resisting the challenge are therefore as follows. Mr Moffett submits, firstly, that the judgment in the previous case does not result, inexorably, in the unlawfulness of the continued application of the increase in the qualifying period for settlement. The Claimant's case is, he submits, deceptively simple, but there is a need to adopt a "more nuanced approach" to the decision of Sir George Newman.
39. He contends that the earlier judgment was concerned with changes in the substantive criteria applicable to HSMP members when they applied to extend their stays. It was not concerned with the qualifying period that must be completed before members of the scheme could apply to change the basis of their stay in the UK to one of indefinite leave to remain. Sir George Newman expressed no view on the lawfulness of the increase in the qualifying period, and, significantly, he did not address the justification for that increase, although he was clearly aware of it and of the failed challenge in R (Ooi) v Secretary of State for the Home Department [2007] EWHC 3221 (Admin).
40. When the judge referred to members of the HSMP having a legitimate expectation that they "would enjoy the benefits of the scheme according to its terms", Mr Moffett submits that he was referring only to the fact that the grant of leave as an HSMP member led eventually to settlement, not to the fact that such leave led to settlement after any particular period of time. Accordingly, the ratio of the judgment was, he submits, that members of the HSMP had a substantive legitimate expectation that they would not be precluded from obtaining extensions of stay and, thereby, indefinite leave to remain. The increase in the qualifying period does not preclude them from obtaining either extensions of stay or indefinite leave to remain, and therefore does not impinge upon such legitimate expectation as was found to exist in the earlier case.
41. In his skeleton argument Mr Moffett also relied upon the announcement in Parliament by the Secretary of State, in February 2005, of her intention to increase the qualifying period to 5 years, arguing that no-one who joined the scheme after February 2005 can have had any expectation of qualifying for indefinite leave to remain after 4 years. He did not, however, advance this submission with any real enthusiasm in his oral submissions. He was wise not to do so. Quite apart from the points made by Mr Fordham as to the inherent unlikelihood of prospective migrants discovering this particular announcement in the relevant section of Hansard, the evidence shows that the HSMP guidance published subsequent to this announcement, in both April and October 2005, continued to refer to a qualifying period of 4 years for indefinite leave to remain. In any event, the announcement was expressed in general terms only and said nothing about its application to those who joined the HSMP, or to those who had joined the HSMP before the changes were made.
42. In summary, therefore, the submissions of the Secretary of State are these:

(1) Given the issue the judge had to decide, his focus on the "substantive" terms of the HSMP, and his failure to deal with the qualifying period or to consider the justification for increasing it, the previous judgment does not have the effect that the Claimant suggests. The failure to address this issue in the policy guidance of 9 July 2008 was not, therefore, unlawful.

(2) Even if the Claimant is right as to the effect of the previous judgment, the question of who should be granted indefinite leave to remain in this country is for the Secretary of State to determine, with the assistance of Parliament, and not for this Court. A less intrusive standard of review applies. Further, the change in the qualifying period was a proportionate response to a legitimate aim and this Court should not interfere.

The Effect of the Previous Judgment

43. It is correct, of course, that the issue in that case arose out of changes made to the HSMP in November 2006, and Mr Fordham does not dispute that that was the factual context for the decision.
44. However, I agree with Mr Fordham that it is necessary to identify the principle that led the judge to decide the case in the way that he did. Why did he hold that the changes made in November 2006 were unlawful?
45. The clear answer to that question, in my view, is to be found at paragraphs 52, 55 and 57 of his judgment, where the judge analysed the purpose and terms of the HSMP up to November 2006. The following points are of particular importance.
46. Fundamental to his analysis was the fact that the scheme was not composed of severable parts, but of interlocking provisions, which provided a path to settlement. Once a migrant had embarked on the scheme "it was intended that he should carry the expectation of attaining settlement."
47. Further, the guidance published dealt expressly with changes to the scheme and how any revisions would affect those who were already on the scheme (see those passages referred to above). It was of particular significance that this guidance informed migrants that, once they had entered the UK under the HSMP, they were in a category that had an avenue to settlement.
48. Finally, the terms of the HSMP, properly interpreted in context and read with the guidance and the rules, contained what the judge found to be a "clear representation" made by the Defendant, that once a migrant was on the programme he would enjoy the benefits of it according to the terms prevailing at the date he joined.
49. The ratio of the decision, in my view, is clear. It was a substantive, legitimate expectation of all those on the HSMP that they would enjoy the benefits of the programme, as they were at the time they joined it. If the judge had been seeking to identify a narrower, legitimate expectation he would have said so.
50. In the present case the Secretary of State accepts that it is necessary to deal with those individuals who were members of the scheme before April 2006. She accepts also that no individual should be disadvantaged, in relation to being removed from the UK or being asked to pay an additional fee. The dispute, therefore, centres on the maintaining of a fifth, qualifying year against those who joined the scheme when the qualifying period was 4 years.
51. It is clear that the qualifying period in Rule 135G(i) is a term or condition, to be fulfilled by all those seeking the benefits offered by the scheme. As Mr Short himself recognises, at paragraph 12 of his witness statement, the qualifying period of 4 years was clearly one of the criteria, which an individual had to satisfy before he or she would be eligible to be considered for settlement in the UK as a member of the HSMP.
52. As one of the terms for acquiring the benefits offered by the scheme, there is in my judgment no merit in Mr. Moffett's submission that a distinction is to be drawn between the "substantive" criteria, said to be in play in the earlier case, and the qualifying period at issue in the present. I have to say that I found the "more nuanced" approach to the earlier judgment advocated by Mr Moffett to be so nuanced as to be almost Delphic. I consider that there is nothing in that judgment to suggest that such a distinction between the interlocking and inseparable terms of this scheme is required. On the contrary, it would require the "clear representation", referred to at paragraph 57, to be read as being limited only to 'such terms as are said to be matters of substance and which would preclude settlement'. Such a reading is, in my view, wholly unwarranted.
53. Nor is there anything in the Immigration Rules to support such a distinction. The terms set out at Rule 135G, are all, clearly, substantive terms. Indeed, the qualifying period could effectively be said to underpin the other criteria, which are accepted to be "substantive" criteria. Mr. Moffett accepted, as he had to, that his submission would be the same even if the qualifying period for the ultimate benefit of settlement had been changed from 4 to 10, or even 15 years rather than to 5 years, but this rather undermines his submission that the qualifying period does not have the effect of precluding settlement, as do the other 'substantive' terms.
54. Further, the guidance refers to the 4 year qualifying period as the "main" criteria. This is hardly supportive of the suggestion that it should somehow be regarded as of less significance, in terms of benefit, than the terms for acquiring an extension of stay whilst moving along the path to settlement. Ultimately this, in my judgment, is a distinction without a difference and the principle in the earlier judgment is clear.
55. This conclusion and the existence in this case, as I find, of a substantive, legitimate expectation that the terms on which you joined the HSMP would be the terms on which you qualified for settlement, gains additional support from further material which was placed before me. This comes, firstly, from the large number of witness statements filed by members of the HSMP, where the practical consequences and disadvantages to them personally, of the requirement for a fifth year of residence as a criterion for settlement, have been set out in graphic detail. I shall say more about this evidence below when considering justification.
56. Secondly, the Joint Committee on Human Rights has continued to monitor the changes to the Immigration Rules, relating to the HSMP, since the previous judgment. The Chairperson of the Committee wrote to the Secretary of State on 17 December 2008 asking a number of questions, to which, as at the date of the hearing before me, there appears to have been no reply. That letter included the following observations:

"Following the High Court decision upholding the judicial review challenge to the changes to the Immigration Rules concerning the HSMP, the Government has adopted a new policy which provides that for those that entered the HSMP before November 2006 the requirements for an extension of stay are the same as those which applied at the time they entered. The new policy does not, however, provide for a 4 year qualifying period before settlement for those that entered the HSMP before April 2006. The 5 year qualifying period still applies in such cases.

When you gave evidence to my Committee on 28 October we asked you what distinction of principle there is between the April 2006 and November 2006 changes to the Programme. You drew a distinction between changing the criteria to be satisfied by those on the path to settlement and extending the time period for which they must be on that path in order to qualify for settlement. We are concerned that this is a distinction without a difference. The length of the qualifying period for settlement is one of a number of criteria which have to be satisfied in order to qualify for settlement.

The High Court held 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 Home Secretary], 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.' The High Court held that the terms of the original scheme should be honoured and that there was no good reason why those already on the scheme should not enjoy the benefits of it as originally offered to them. The generality of this reasoning seems to be as applicable to the April 2006 changes as to those made in November 2006."

57. Thirdly, my attention was drawn to a number of decisions by immigration judges in the AIT, promulgated between October 2008 and January 2009. Notwithstanding the fact that the Secretary of State was not always represented at these hearings, the significance of these decisions, by experienced asylum and immigration judges, is the clear understanding of each of them that, following the earlier judgment, the legitimate expectation of skilled migrants admitted to the scheme before April 2006 was that the period of 4 years residence in the United Kingdom would qualify them under the terms of the scheme which then applied, and that their position should, therefore, be reconsidered by the Secretary of State.

Justification

58. It is common ground that the approach to be adopted to this issue is that set out in the judgment of Laws LJ in Nadarajah and Abdi v Secretary of State for Home Department [2005] EWCA Civ 1363 at 68, as follows:

"The search for principle surely starts with the theme that is current through the legitimate expectation cases. It may be expressed thus. Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public. In my judgment this is a legal standard which, although not found in terms in the European Convention on Human Rights, takes its place alongside such rights as fair trial, and no punishment without law. That being so there is every reason to articulate the limits of this requirement - to describe what may count as good reason to depart from it - as we have come to articulate the limits of other constitutional principles overtly found in the European Convention. Accordingly a public body's promise or practice as to future conduct may only be denied, and thus the standard I have expressed may only be departed from, in circumstances where to do so is the public body's legal duty, or is otherwise, to use a now familiar vocabulary, a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances."

59. In R(Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755, Laws LJ referred again to this topic at paragraph 51, drawing from Nadarajah:

"… the idea that the underlying principle of good administration which requires public bodies to deal straightforwardly and consistently with the public, and by that token commends the doctrine of legitimate expectation, should be treated as a legal standard which, although not found in terms in terms in the European Convention on Human Rights, takes its place alongside such rights as fair trial, and no punishment without law. Any departure from it must therefore be justified by reference among other things to the requirement of proportionality."

60. Mr Moffett refers in addition to the judgment of Laws LJ in R v Secretary of State for Education and Employment ex parte Begbie [2000] 1 WLR 1115 and to his observations at 1130G to 1131D that:

"The facts of the case, viewed always in their statutory context, will steer the court to a more or less intrusive quality of review. In some cases a change of tack by a public authority, though unfair from the applicant's stance, may involve questions of general policy affecting the public at large or a significant section of it (including interests not represented before the court); here the judges may well be in no position to adjudicate save at most on a bare Wednesbury basis, without themselves donning the garb of policy-maker, which they cannot wear. The local government finance cases, such as Reg. v. Secretary of State for the Environment, Ex parte Hammersmith and Fulham London Borough Council [1991] 1 A.C. 521, exemplify this. As Wade and Forsyth observe (Administrative Law, 7th ed. (1994), p. 404):

'Ministers' decisions on important matters of policy are not on that account sacrosanct against the unreasonableness doctrine, though the court must take special care, for constitutional reasons, not to pass judgment on action which is essentially political.'

In other cases the act or omission complained of may take place on a much smaller stage, with far fewer players. Here, with respect, lies the importance of the fact in the Coughlan case [2000] 2 WLR 622 that few individuals were affected by the promise in question. The case's facts may be discrete and limited, having no implications for an innominate class of persons. There may be no wide-ranging issues of general policy, or none with multi-layered effects, upon whose merits the court is asked to embark. The court may be able to envisage clearly and with sufficient certainty what the full consequences will be of any order it makes. In such a case the court's condemnation of what is done as an abuse of power, justifiable (or rather, falling to be relieved of its character as abusive) only if an overriding public interest is shown of which the court is the judge, offers no offence to the claims of democratic power.

There will of course be a multitude of cases falling within these extremes, or sharing the characteristics of one or other. The more the decision challenged lies in what may inelegantly be called the macro-political field, the less intrusive will be the court's supervision. More than this: in that field, true abuse of power is less likely to be found, since within it changes of policy, fuelled by broad conceptions of the public interest, may more readily be accepted as taking precedence over the interests of groups which enjoyed expectations generated by an earlier policy."

61. Mr Moffett's first submission is that the question of when individuals should be permitted to settle permanently in the UK is a subject which falls clearly within the macro-political field, and for which less intrusive judicial supervision is therefore appropriate.
62. Mr Short states that individuals who are granted indefinite leave to remain will no longer have any restrictions placed upon their ability to come and go from the UK, or upon the type of employment they may engage in, or their ability to access public funds. The term "settlement" is used interchangeably with indefinite leave to remain and, as such, its grant is close to citizenship. In order to ensure that the concept of citizenship did not become "diluted", a number of changes were made to the criteria for citizenship in the Nationality Immigration and Asylum Act 2002.
63. Similar consideration was given to the grant of indefinite leave to remain and, he states, one obvious way to ensure that an individual had a greater attachment to the UK, before being granted indefinite leave, was to increase the qualifying period. This was essentially a matter of judgment and the decision to increase the qualifying period by one year to 5 years represents an increase considered to be neither negligible nor too great, and to be consistent with the 5 year period specified in EU Directives 2003/109/EC and 2004/38/EC concerning the status of third-country nationals who are long-term residents, and the entitlement to acquire rights of permanent residence. Mr Short points out that the increase was directed at promoting these objectives. It was scrutinised in Parliament and was not disapproved. Mr Moffett submits that this Court should therefore not interfere.
64. He relies further on the judgment of Mitting J. in R(Ooi and Others) v Secretary of State for Home Department [2007] EWHC 3221 (Admin) as being relevant to the present case. The Claimants there were work permit holders, who challenged the April 2006 extension in the qualifying period in the Immigration Rules. Previously, anyone who had been permitted to enter the UK following the grant of a work permit, and who fulfilled the specified conditions in the rules, could apply for indefinite leave to remain after 4 years' continuous residence in the UK. Amongst other submissions the Claimants contended that this rule change defeated a legitimate expectation of a substantive kind.
65. Mitting J. accepted (at paragraph 49) that an explicit statement made to a limited number of people, by a public authority exercising a statutory function as to how it will discharge that function in relation to them, can give rise to a legitimate expectation that it will do so, which can be enforced by the Court (R v North and East Devon Health Authority Ex Parte Coughlan [2001] QB 213).
66. In that case, however, Mitting J. held that there was no explicit or unequivocal statement made, so as to ground any expectation on the part of those Claimants. He said this at paragraph 53:

"Further, the changes reflected Ministerial decisions, not disapproved by Parliament, on important matters of policy which affected very many people and the social cohesion of the United Kingdom as a whole. As a judge I am not in a position to judge, save on bare Wednesbury grounds, the questions of general policy which underlie the changes. Judicial reticence is plainly required."

67. Mr Moffett also relies on the legitimacy of the aim, in increasing the qualifying period, of ensuring that people who want to settle in the United Kingdom, whether they are already here or are yet to come, demonstrate a greater commitment to doing so; and of achieving consistency, in addition, with relevant EU provisions.
68. He submits that the one year increase was a proportionate response to that aim. In addition, consideration was given to whether any transitional arrangements, which had the effect of delaying the increase in certain cases, should be introduced, as Mr Short explains at paragraph 23. Mr Short states that it was considered that,

"Although some individuals would be affected by the increase in the qualifying period, any effects would be limited (especially as it did not alter anyone's existing status) and therefore this was not a case where the normal approach should be departed from, particularly as there was no obvious alternative date for implementation."

69. Mr Moffett submits that the increase in the qualifying period did not make the immigration status of those on the HSMP any worse. It did not preclude them from progressing to settlement in due course and, in this way, the increase can be said to have "delayed a positive impact", rather than to have had a negative impact. Thus, he submits that the increase was a proportionate response to a legitimate aim in the public interest, and this Court should not interfere.
70. I have considered these submissions, but in the circumstances of this case I find them wholly unpersuasive. Mr Moffett accepts, firstly, that there is a requirement of good administration, a legal standard by which public bodies ought to deal straightforwardly and consistently with the public and ought to be held to their promises. For the reasons set out above I find that there was, in this case, the clearest of representations to those already on the HSMP before 3 April 2006 that they would qualify for indefinite leave to remain in the UK after a period of continuous residence of 4 years.
71. In my judgment the issue which arises in the present case is a particular one, affecting a specific, well-defined group of people, which cannot be said to lie in the macro-political field. There seems to me to be a clear parallel in this respect with the facts of Begbie, in which a group of between 1,200 and 1,500 children affected by the assisted places education scheme was said to constitute a "relatively small, certainly identifiable, number of persons" (see 1131D). The number of skilled migrants affected in the present case is, of course, considerably smaller and is clearly identifiable.
72. The decision in Ooi, in my view, does not take the matter any further. Firstly, Mitting J. held that, in relation to work permit holders, there was no explicit or unequivocal statement of the kind that I consider exists in the present case, following the clear representation to skilled migrants as to qualification for settlement after 4 years.
73. Secondly, Mitting J made clear at paragraphs 76–77 that the position of those covered by the HSMP was "not in point", being the subject of another claim which fell to be considered "on its own merits".
74. Thirdly, Sir George Newman observed at paragraph 51 of his judgment that the Claimants in Ooi were relying upon existing general provisions of law as founding a legitimate expectation as to their future rights, which gave rise to different considerations. The decision in that case was, therefore, irrelevant to skilled migrants on the HSMP, whose situation, I agree, is entirely different.
75. At Mr Fordham's request I have read all the witness statements in the bundle from members of the HSMP. They include senior academics, teachers and lecturers, doctors, engineers, managers and those with senior positions in the financial sector. They describe in clear terms the implications to them of the change in the rules and the requirement for an additional, fifth year of continuous residence. Quite apart from the psychological and emotional impact described, there are references, for example, to financial difficulties caused because of the inability to secure a competitive mortgage without indefinite leave to remain; a continuing lack of good employment or promotional opportunities without indefinite leave; an inability to comply with the travel requirements of employment, due to the scheme restrictions on travel abroad or the need for visas, with consequential career setbacks and affects on CVs; and the necessity now to pay overseas students' fees for the entirety of the course, for children who were due to start their university courses here after 4 years' continuous residence and the attainment of settlement.
76. The submission on behalf of the Defendant that there has been no negative impact as a result of the change fails to have regard to the practical realities of people's private and professional lives and is, in my view, unsustainable.
77. Like Sir George Newman before me, I too am unable to identify a sufficient public interest which justifies a departure from the requirement of good administration and straight forward dealing with the public, or which outweighs the unfairness that the increase in the qualifying period visits upon those already admitted under the scheme.
78. I share his concerns too, as to what now seems to be a developing pattern of refusal to acknowledge the clear evidence of hardship and disadvantage of the kind disclosed in the witness statements. Mr Short's statement, for example, in response to those statements that, in relation to employment opportunities, "migrants should have made themselves aware of the job requirements that prevailed within specific fields of employment in the UK prior to making a decision to enter into the HSMP" shows a disturbing degree of insensitivity to the plight of those who were encouraged to uproot themselves and join a programme designed to benefit the United Kingdom, as well as themselves, and who were being told that, if they met the criteria, they would be entitled to settle here permanently after 4 years.
79. I conclude, therefore, that it would be unlawful for the Secretary of State to withhold indefinite leave to remain from all those members of the HSMP who were already on the scheme before the 3 April 2006, by reference to a qualifying period of 5 years continuous residence. In the circumstances, since the policy of 9 July 2008 does not so provide, it is unlawful and the Court should intervene.
80. It was made clear during the hearing, as I have already stated, that the Secretary of State accepts that it is necessary to deal with the individuals who were members of the scheme before April 2006. She accepts too that no individuals should be disadvantaged in relation to being removed from the UK and in relation to being asked to pay an additional fee. However, in my judgment, the proposed policy referred to in the letter of 19 February 2009 does not go far enough, for the reasons I have given.
81. My provisional view is that the Claimant is entitled to the relief sought, but I shall invite submissions from counsel as to the appropriate relief in this case before deciding on the form of the Order.
- - - - - - - - - - - - - - - - - - - - - - - - - -