QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF HSMP FORUM (UK) LIMITED
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Jonathan Moffett (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 13th March 2009
Crown Copyright ©
Mrs. Justice Cox :
"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."
"The Defendant's position can be ventilated at the Judicial Review hearing subject to her compliance with CPR Part 54.9 (1)(b)."
"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."
The Original Scheme
"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.'"
"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."
"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."
"(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."
"(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)."
"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."
" 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 Previous Judgment
"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."
" .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."
"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."
"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."
"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."
The Present Challenge
"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."
(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
"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."
"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."
" 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."
"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  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  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."
"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."
"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."