AA and Others (Highly skilled migrants: legitimate expectation) Pakistan  UKAIT 00003
Date of hearing: 22 October 2007
Date Determination notified: 21 December 2007
|AA and Others
|Secretary of State for the Home Department||RESPONDENT|
(1) The Tribunal has jurisdiction to consider a challenge to an immigration decision on the basis of the public law concept of legitimate expectation which falls within the ground of appeal that the decision is "otherwise not in accordance with the law" in s.84(1)(e) of the 2002 Act and, if made out, the appeal must be allowed under s.86(3)(a); (2) the changes to the HSMP in effect from 7 November 2006 apply to all decisions in respect of extensions of leave made on or after that date; (3) in such cases, the Home Office Guidance on the HSMP of 31 October 2003 does not create a legitimate expectation that those who entered the UK prior to 7 November 2006 will have their extensions of stay decided on the basis of any previous Immigration Rules and criteria relating to the HSMP.
The Highly Skilled Migrant Programme (HSMP)
"to allow individuals with exceptional skills to seek entry or stay to work in the UK without having a prior offer of employment, or to take up self-employment opportunities."
Prior to 7 November 2006
"Requirements for leave to enter the United Kingdom as a highly skilled migrant
135A The requirements to be met by a person seeking leave to enter as a highly skilled migrant are 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.
Leave to enter as a Highly Skilled Migrant
135B A person seeking leave to enter the United Kingdom as a highly skilled migrant may be admitted for a period not exceeding 2 years, provided the Immigration Officer is satisfied that each of the requirements of paragraph 135A is met.
Refusal of leave to enter as a highly skilled migrant
135C Leave to enter as a highly skilled migrant is to be refused if the Immigration Officer is not satisfied that each of the requirements of paragraph 135A is met."
"Requirements for an extension of stay as a highly skilled migrant
135D The requirements of an extension of stay as a highly skilled migrant, in the case of a person who was granted leave to enter under paragraph 135A, are that the applicant:
(i) entered the United Kingdom with a valid United Kingdom entry clearance as a highly skilled migrant; and
(ii) 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).
Extension of stay as a highly skilled migrant
135E An extension of stay as a highly skilled migrant maybe granted for a period not exceeding 3 years, provided that the Secretary of State is satisfied that each of the requirements of paragraph 135D, 135DA, 135DB, 135DC, 135DD, 135DE, 135DF or 135DG is met.
Refusal of extension of stay as a highly skilled migrant
135F An extension of stay as a highly skilled migrant is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 135D, 135DA, 135DB, 135DC, 135DD, 135DE, 135DF or 135DG is met."
"Indefinite leave to remain as a highly skilled migrant
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 5 years' leave to enter or remain in the United Kingdom in this capacity or has had a continuous period of at least 5 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.
Refusal of indefinite leave to remain as a highly skilled migrant
135H Indefinite leave to remain in the United Kingdom to a person currently with leave as a highly skilled migrant is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 135G is met."
From 7 November 2006: HC 1702
"135D. The requirements for an extension of stay as a highly skilled migrant for a person who has previously been granted entry clearance or leave in this capacity, are that the applicant:
(i) entered the United Kingdom with a valid United Kingdom entry clearance as a highly skilled migrant, or has previously been granted leave in accordance with paragraphs 135DA-135DH of these Rules; and
(ii) has achieved at least 75 points in accordance with the criteria specified in Appendix 4 of these Rules, having provided all the documents which are set out in Appendix 5 (Part I) of these Rules which correspond to the points which he is claiming; and
(iii) (a) has produced an International English Language Testing System certificate issued to him to certify that he has achieved at least band 6 competence in English; or
(b) has demonstrated that he holds a qualification which was taught in English and which is of an equivalent level to a UK Bachelors degree by providing both documents which are set out in Appendix 5 (Part II) of these Rules; and
(iv) meets the requirements of paragraph 135A(ii)-(iii)."
"….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 a business plan and evidence that you have established a business bank account, which has been active, will suffice. If you have been active in employment and self-employment then you should submit evidence of both. …"
The starting point
"… there is no right in the applicant to dictate to the Secretary of State which set of rules shall be applied at the time of the decision in the case. The rules are essentially rules which have to be regarded at the time of a decision."
"14. The Immigration Rules are not a statute or a statutory instrument. Although they are to be laid before Parliament, and although they are subject to a negative resolution by either House, they remain the Secretary of State's "Rules laid down by him as to the practice to be followed". Although they can have no effect if the legislature disapproves of them, the Immigration Rules are essentially executive, not legislative. Section 3(2) of the 1971 Act sets down the procedure for making what are essentially statements of policy; it does not change those statements from policy into legislation. As executive rules or policy they are in our view not amenable to interpretation as though they were statutes or statutory instruments. The Secretary of State is entitled and bound to make and operate the United Kingdom's immigration policy and he is entitled to make decisions about particular cases by reference to the policy in operation at the time the decision is made."
(1) the Tribunal has no jurisdiction to entertain an appeal on public law grounds such as legitimate expectation;
(2) in any event, the only legitimate expectation that the appellants had was that their applications would be decided under the rules and criteria in force at the date of any decision on their applications for extensions of stay; and
(3) even if the appellants' argument was accepted, any such legitimate expectation was overridden in the public interest.
The Tribunal's jurisdiction
"84. Grounds of appeal
(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds—
(a) that the decision is not in accordance with immigration rules;
(b) that the decision is unlawful by virtue of section 19B of the Race Relations Act 1976 (c. 74)(discrimination by public authorities);
(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42)(public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;
(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom;
(e) that the decision is otherwise not in accordance with the law;
(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules;
(g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights. …"
"86. Determination of appeal
(1) This section applies on an appeal under section 82(1) , 83 or 83A.
(3) The Tribunal must allow the appeal in so far as he thinks that—
(a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or
(b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.
(5) In so far as subsection (3) does not apply, the Tribunal shall dismiss the appeal.
(6) Refusal to depart from or to authorise departure from immigration rules is not the exercise of a discretion for the purposes of subsection (3)(b)."
"[Counsel for the Secretary of State's] argument encounters its final and, to my mind, insurmountable hurdle, in a consideration derived from the general law. On classic Wednesbury principles (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation  1 KB 223), in exercising his discretion whether to implement a court recommendation for deportation or whether to decide to make a deportation order against an overstayer, the Secretary of State is bound to take account of all relevant considerations. If, therefore, some interest of third parties which is known to the Secretary of State and which would be adversely affected by deportation is in truth relevant to the proper exercise of the discretion, a decision made without taking it into account would in any event be open to challenge by judicial review and consequently would be open, in the case of an overstayer, to appeal under section 19(1) as being "not in accordance with the law" quite apart from the immigration rules. It follows that to construe the rules in the sense for which the appeal tribunal contends would not only conflict with the general law but would also be ineffective to restrict the relevant matters which the appellate authorities may, and indeed must, take into consideration."
"…having regard to the firm view I have taken of the Tribunal's finding on fairness, it is unnecessary to resolve this issue. It is far better that it should wait to be resolved in a case where it is crucial to the determination of the application. Be that as it may, I feel it right to say, without, of course, deciding the matter, that I should find it very surprising that within the appellate structure of the 1971 Act, adjudicators and tribunals are empowered to embark upon often complex and far-reaching issues involving public law considerations, such as procedural impropriety, and so on, albeit that a Tribunal has a legal chairman and that an appeal lies to this court from the Tribunal. In the present uncertainty of the public law issues, I think it would be prudent of chairmen of tribunals to leave such matters to this court which is accustomed to dealing with them."
"These remarks are only obiter dicta and it is not obvious that Parliament by section 19(1)(a)(i) intended adjudicators to have the power to examine the validity of the Home Secretary's decision by reference to all the matters that would be relevant for a judicial review of the decision. But Mr Singh did not suggest that Lord Bridge's remarks were wrong and they are supported by similar comments by Mustill LJ in Malhi v Secretary of State for the Home Department  Imm AR 275 at p 283. I shall therefore proceed on the footing that if it can be shown that the Home Secretary failed to act in accordance with established principles of administrative or common law, for example if he did not take account of or give effect to his own published policy, that was not "in accordance with the law"."
"16. The position is that the AIT should have found an error of law by the adjudicator. He for his part should have found that the Secretary of State's decision was not in accordance with the law and allowed the appeal under section 86(3)(a) of the Nationality, Immigration and Asylum Act, 2002 ("the 2002 Act"). This court has held more than once that for the Secretary of State to fail to take account of or give effect to his own published policy renders his decision not "in accordance with the law": see, for example, Secretary of State for the Home Department v. Abdi  Imm AR 148 at 157. Likewise the AIT should have concluded that the adjudicator had made an error of law."
"40. The Tribunal has jurisdiction to say that a decision is not in accordance with the law where the Secretary of State has ignored or misinterpreted his policy. Abdi shows as much…."
"43. It might be that the facts of a particular case were so strong that a failure to give effect to a substantive legitimate expectation was an abuse of power and hence the decision would be not in accordance with law. That would not be enforcing policy but law. But the facts here are nowhere near that. Where the facts show that a decision breached the requirement for the procedural protection of a legitimate expectation, the decision would not be in accordance with law, but could be reconsidered. ..."
The scope of legitimate expectation
"68 …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. …"
"57. There are at least three possible outcomes. (a) The court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight it thinks right, but no more, before deciding whether to change course. Here the court is confined to reviewing the decision on Wednesbury grounds. This has been held to be the effect of changes of policy in cases involving the early release of prisoners (see Re Findlay  AC 318; R v Home Secretary ex parte Hargreaves  1 WLR 906). (b) On the other hand the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here it is uncontentious that the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it (see A-G for Hong Kong v Ng Yuen Shiu  2 AC 629) in which case the court will itself judge the adequacy of the reason advanced for the change of policy, taking into account what fairness requires. (c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive , not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy."
"58. The court having decided which of the categories is appropriate, the court's role in the case of the second and third categories is different from that in the first. In the case of the first, the court is restricted to reviewing the decision on conventional grounds. The test will be rationality and whether the public body has given proper weight to the implications of not fulfilling the promise. In the case of the second category the court's task is the conventional one of determining whether the decision was procedurally fair. In the case of the third, the court has when necessary to determine whether there is a sufficient overriding interest to justify a departure from what has been previously promised."
"…most cases of an enforceable expectation of a substantive benefit (the third category) are likely in the nature of things to be cases where the expectation is confined to one person or a few people, giving the promise or representation the character of a contract…."
"…when a promise is made to a category of individuals who have the same interest it is more likely to be considered to have binding effect than a promise which is made generally or to a diverse class, when the interests of those to whom the promise is made may differ or, indeed, may be in conflict…"
"…First, the importance of what was promised to Miss Coughlan, (as we will explain later, this is a matter underlined by the Human Rights Act 1998); second, the fact that promise was limited to a few individuals, and the fact that the consequences to the Health Authority of requiring it to honour its promise are likely to be financial only."
i. a promise or representation was made in the Home Office guidance that an applicant seeking an extension of leave in the future would be judged on the (then) rules and criteria rather than any changed provisions;
ii. if so, that it would be unfair and unlawful as an abuse of power to renege on that promise.
Promise or representation?
"24. 9 Q: What if the scheme changes?
A: As with any immigration scheme we reserve the right to adapt some of the criteria or documentation associated with the scheme and will inform you via our websites of any such changes. All applications will be treated on the basis of the HSMP provisions at the time that they were submitted.
24.10 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 these revisions to HSMP.
26.5 Q: How long can I stay in the UK if I entered as a skilled migrant?
A: You will initially be given 12 months stay. If you want to remain in the UK under the HSMP, you should apply for an extension of your stay in the last month before the expiry of your permission to stay in the UK. For further information, please see "Extension of stay in the United Kingdom" section. You will be able to amalgamate leave in other categories that lead to settlement for example, please see "Extension of stay in the United Kingdom section." towards the end of that period you can apply to remain in the same capacity for a further period of up to three years.
After four 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 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 and that you continue to be economically active in the UK as a highly skilled migrant.
26.6 Q: What will I need to do to qualify to stay after the first 12 months?
A: You will need to show that you are lawfully economically active or, if you are not, that you have taken all reasonable steps to become lawfully economically active (e.g. evidence of several job application forms or a business plan). Applications are made directly to the HSMP Team of Work Permits UK using a form FLR (HSM) together with supporting HSMP evidence. The evidence that you will be required to provide is covered in the section "Extension of stay in the United Kingdom" in this guidance. Details of the application process for an extension of stay after one year in the programme will also be provided to successful HSMP applicants with their approval papers. "
"18.1 If your application is successful you will be given permission to enter the United Kingdom for a period of 12 months. In the last month before 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 HSMP team in Work Permits (UK) using the form FLR (HSM) available from the IND website. 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 a business plan and evidence that you have established a business bank account, which has been active, will suffice. If you have been active in employment and self-employment then you should submit evidence of both. You will also need to declare that you and your family have not had access to public funds and have not received a criminal conviction. If your application is approved you will normally be given permission to remain for a further three year period. Further details on the application process for an extension of stay after one year will be provided to successful applicants.
18.2 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. In addition those applicants who have been approved under HSMP and are applying for permanent residence as a Highly Skilled Migrant will be able to amalgamate leave to remain under HSMP with previous leave from other categories that lead to settlement. For example if you had previously stayed in the UK with two years leave for work permit employment and then switched to the HSMP you would be eligible to apply for settlement after a further two years in the UK as a Highly Skilled Migrant. Further information on whether an immigration route leads to settlement can be found on the IND website at www.ind.homeoffice.gov.uk. If you meet the requirements for settlement your spouse or unmarried partner and children under the age of 18 will also be able to obtain permanent residence with you."
"intends to make the United Kingdom his main home".
"9.1 In addition to scoring at least 65 points you will also need to demonstrate:
c) 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. Secondments abroad that are an integral part of a job based in the UK are permitted by HSMP, however they will be considered as time outside of the UK for settlement eligibility purposes. 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."
"16. The appellant can gain nothing by putting his claim in the language of legitimate expectation. His only legitimate expectation is to have his application decided in accordance with the Rules at the time the decision is made. Any other view would entail the conclusion that the Secretary of State's power to make policy by changing the Rules from time to time is hampered or fettered (see In re Findlay  AC 318)…. "
"All applications will be treated on the basis of the HSMP provisions at the time that they were submitted."
"HSMP has been extended indefinitely, although the Home Office may decide it is appropriate to make further changes to HSMP in the future."
"24.10 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 these revisions to HSMP."
"The balance between an individual's fair treatment in particular circumstances, and the vindication of other ends having a proper claim on the public interest (which is the essential dilemma posed by the law of legitimate expectation) is not precisely calculable, its measurement not exact."
"80. .... 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 R v Secretary of State ex parte Hammersmith  1 AC 521, exemplify this. As Wade and Forsyth observe (Administrative Law , 7th edn 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."
81. 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 Coughlan 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.
82. 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. "
"will be more effective in ensuring that the HSMP helps us to select those migrants who will make the greatest economic contribution to the UK."
"We made the changes in order to:
- Ensure that the programme continues to attract those migrants who are of the greatest benefit to the UK economy.
- Make it clearer and more objective, inline with our aims for the forth-coming Points-Based System for managed migration; and
- Tackle previous instances of abuse under the system.
The previous extension test was not a sufficient robust measure of whether the migrant had been making an economic contribution to the UK. This meant that the scheme was not always meeting its policy objective of bringing talented people to the UK who can make a strong contribution to our economy. Analysis of labour market outcomes at the extension test stage showed that whilst the majority of HSMP migrants are earning good salaries in the UK, around one in ten earn equivalent to the bottom 25% of UK earners, and around 2 in 10 earn below the average wage. Further, we found that some were employed in low-skilled jobs such as food production operatives and taxi drivers.
The new rules have been designed to overcome this problem by using criteria that more accurately predict labour market success at the initial application stage and by testing HSMP participant's success in the UK labour market more rigorously at the extension stage. We believe that these measures are therefore necessary in the interests of the economic well-being of the country."
"Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
21. I deal next with the claim that the decision of the Respondent is unlawful because it is in breach of the terms of Article 8. In my view the Appellants have failed to show that Article 8 is engaged at all, whether in relation to their right to respect for their private lives on the one hand or their family life on the other. So far as the former is concerned, Mr Hussain submitted that private life in effect extended to any activity undertaken in the life of a private individual. Mr Hussain cited no authorities in support of this proposition and in my judgement his submission is far too widely framed. It would, were it to be adopted, mean that Article 8 would be engaged in the case of every field of human activity with the exception of that conducted in a public capacity. I therefore turn to authority for guidance. In Pretty v United Kingdom (2002) 35 EHRR 1, paragraph 61, the Court held the expression to cover "the physical and psychological integrity of a person" and went on to observe that
"Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings in the outside world".
In Regina v Secretary of State for the Home Department, ex parte Razgar  UKHL 27, Lord Bingham said
"Elusive though the concept is, I think one must understand "private life" in Article 8 as extending to those features which are integral to a person's identity or ability to function socially as a person. Understood in this sense, I am quite satisfied that the decision of the Respondent to extend the Appellant's leave to remain in the United Kingdom does not interfere with the exercise by them of their right to respect for their private lives".
Applying these dicta, I find that the refusal to allow the appellant to settle and work in the United Kingdom does not impinge at all upon his right to respect for his private life. It merely restricts the location in which he is able to conduct his economic activities. It has nothing to do with "…those features which are integral to a person's identity or ability to function socially as a person".
22. I turn to the issue of the family life of the Appellants. I find that there is nothing in the decision of the Respondent which interferes at all with the exercise by the Appellants of their right to respect for their family life. Article 8 imposes a positive obligation upon the state to respect the family life of the Appellants: it does not guarantee a right to family life in the United Kingdom. The decisions which are impugned have been applied consistently in the case of all three Appellants (in the sense that all their applications have been rejected): they do not even potentially (as is sometimes the case) result in the family being divided.
23. If I am wrong to find that Article 8 is not engaged, and in deference to the able submissions put forward by Mr Hussain, I consider briefly the remaining four questions raised by Lord Bingham at paragraph 17 of his speech in Ex parte Razgar (above). I do not consider the consequences of the Appellants' relocation to Pakistan where, with the exception of the last twelve months, they have lived all their lives to be of such gravity as potentially to engage the operation of Article 8. In other words, even if technically the right is impinged upon, it does not meet the minimum required to qualify as a breach of the human rights of the Appellants. If it does, such interference is in accordance with the law, as represented for these purposes by paragraph 135D of HC 395 as amended. The interference is necessary in a democratic society in the interests of the economic well-being of the country. Indeed, the very basis upon which highly skilled migrants are admitted to the United Kingdom in the first place is intended, not primarily to be for the benefit of the migrant (although it may well, and usually will, coincidentally benefit him), but for the benefit of the economy of the United Kingdom. The corollary of this is that at the point that the state judges the net economic benefit to the United Kingdom of the continued presence of the migrant in the United Kingdom to be outweighed by other factors (the pressure on housing, the cost to public services and so forth) interference with the Article 8 right of the migrant becomes necessary in a democratic society. This is the answer to Mr Hussain's rhetorical question: what purpose would be served by returning the Appellants to Pakistan at this stage? The answer is (however dispassionate it may seem) is that the economic benefits of their continued presence are now outweighed by the economic disadvantages arising from it. As to the emphasis by Mr Hussain upon the need for the law that regulates such interference to be foreseeable, this in my view should be understood in the context of the clarity of the language employed. The law must be sufficiently clearly stated so that a person who may be affected by it can foresee the likely consequences of its application. It is not intended to suggest that the law cannot be changed. Were such a requirement imposed by Article 8(2), it would mean that the law could never be changed, contrary to the doctrine of parliamentary sovereignty. That the law can be changed is implicitly recognised in Article 7, which prohibits the imposition of retrospective penalties, but does not prevent them being changed at all. In answering the final question (which relates to the proportionality of the interference to the legitimate public end sought to be achieved) once it is recognised that it is legitimate to control the flow of economic migrants at all, it is difficult to see what other measure the Respondent could have taken in pursuit of his objective. The return of a family to their home country, from which they have been estranged for only a matter of months, appears on its face to be a proportionate response to the overall economic well-being of the United Kingdom. In so holding, I have not overlooked the other factors urged by Mr Hussain. However it is entirely a matter of speculation as to whether the liquidation by the first Appellant of his assets in Pakistan and investment of them in assets in the United Kingdom will have led to an overall financial loss to him. It is further a matter of pure speculation as to whether the subsequent liquidation of his assets in the United Kingdom in order to reinvest them in Pakistan will result in a gain or loss to him. As the investments in both countries were essentially in real property, this will depend entirely upon the relative property price inflation in the respective countries at the time of sale and acquisition. Undoubtedly disbursements incurred by the first Appellant as a result of the process of acquisition will have been wasted. The extent to which these wasted expenses, which may be viewed as losses in isolation, affect the overall financial situation of the first Appellant as a result of his period in the United Kingdom, is again a matter of pure speculation. On the evidence before me I can therefore only judge the issue of proportionality by reference to the personal inconvenience to the Appellants arising from the decision of the Respondent. Arguably this will be felt most acutely by the third Appellant, whose education has been disrupted once by moving from Pakistan to the United Kingdom, only to be disrupted once again by his removal back to Pakistan. However, when looking at the issue of proportionality in his case, the most that can be said is that he may have fallen behind a single year in his overall educational progress."
14. With regard to Article 8 of the European Convention on Human Rights and Fundamental Freedoms, I accept that the decision of the Respondent interferes with the Appellant's right to a private life at the very least in the United Kingdom. It may ultimately interfere with his right to a family life in the United Kingdom although his family are currently living in Pakistan. Nevertheless, the decision is lawful and is legitimate in the proper pursuit of Immigration control. I also find that the decision is proportionate. The Appellant currently lives in one room in a terrace house in Leeds. He is clearly hard working. He earns in the order of £950 per month of which he sends over £300 per month to his family in Pakistan. He gave up a government job in order to come to the United Kingdom and I accept that it would not be possible for him to return to that government job if he returned to Pakistan. He would have to look for a job in the private sector. It may not pay as much as he would expect. I also accept that since coming to the United Kingdom he has been able to put his children into private education and if he were to return to Pakistan he may not be able to keep them in private education. I accept that it was his intention that his wife and family would come to the United Kingdom where they would settle permanently in due course. I accept the submissions made, which were not challenged in detail, that the Appellant would have met the criteria for a continuation of the HMSP in the United Kingdom under the rules prior to the 8th November 2006. The Appellant has acted properly throughout his time in the United Kingdom and has made applications in accordance with the rules. I sympathise with his situation. Nevertheless, his private life in the United Kingdom is limited. He is in what may be considered to be temporary phase. He wishes to bring his family to the United Kingdom in due course, but if he were to return to Pakistan he would be able to have a family and private life with them. I believe that he would be able to find a job even if it was not the same job as he once had previously. There is obviously a question of fairness which has to be considered when Immigration Rules change and affect those involved adversely. It may be that the Appellant would wish to challenge the fairness of the Immigration Rules in another forum. However, in the case of this Appellant I find that the decision of the Home Office which is now being appealed did not interfere disproportionately with the Appellant's Article 8 rights."
5.18 This appeal is also put on human rights grounds. I am satisfied that the appellant has established private life in the United Kingdom He gave an undertaking that he would reside in the United Kingdom on a long-term basis. He gave up much to be here.
5.22 I am satisfied that the refusal to vary the leave to enter amounts to an interference in the appellant's private life. That interference will have consequences of such gravity so as to engage Article 8. It would require the appellant to return to India and nullify the very elaborate and costly actions he took in leaving his family and career to come to the United Kingdom. The refusal of variation was in accordance with the law as it stood as from 5th December 2006. It is necessary for the economic well-being of the country and for the prevention of disorder or crime to have proper regulation of immigration. But, in the circumstances of this particular case, was the decision proportionate?
5.23 I take into account the clear expectation derived from the old HSMP Scheme. I also take into account that the respondent appeared to give no consideration to persons such as the appellant who had entered in good faith under the old scheme but, because of the timing of their entry, would not be able to succeed under the new scheme. I mention in passing that I accept entirely the appellant's reason for his delayed entry to the United Kingdom following the grant of leave. His mother was seriously ill. But in any event that point may be academic because whilst the new scheme has a requirement of previous employment in the United Kingdom the old scheme did not. I am satisfied that, for this particular appellant, the decision to refuse variation of leave was not proportionate and amounted to a breach of his Article 8 Right."
SENIOR IMMIGRATION JUDGE