Home Office policy restricting settlement rights for highly skilled migrants has been quashed in a recent ruling.

In another twist to what is becoming a long-running saga, a High Court judge has ruled that the Home Office acted illegally in not complying with an earlier court ruling. That ruling had struck down rules making it more difficult for highly skilled economic migrants to settle in the UK, after encouraging them to sell their homes to come here under the Highly Skilled Migrant Programme (HSMP). On 6 April 2009, Mrs Justice Cox allowed the judicial review application of the HSMP Forum and declared Home Office policy adopted in consequence of the earlier judgment unlawful.

The background

In January 2002, the government, mindful of skills shortages and demographic deficits in the UK, sought to woo highly skilled and qualified migrants to the UK with the HSMP, in which immigration rules leading to settlement were relaxed for migrants with good academic qualifications, experience and skills. Those meeting the qualifying criteria were admitted for an initial year and then, on proof that they were engaged in economic activity so as to be self-supporting, and that they intended to make the UK their main home, were granted a further three years, leading to the possibility of settlement here after four years. Many migrants in all corners of the world sold their homes to enrol in the programme. By April 2006, the government changed the qualifying period for settlement from four to five years. Then, in November 2006, the criteria for staying on after the initial year were severely tightened. A points system was developed, which favoured young people on high salaries. And the changes were retrospective. Many who had expected to qualify for settlement were told, not only that they had not been in the UK for long enough, but also that they no longer qualified under the tight new criteria, and would have to leave at once, on pain of being criminalised as overstayers.

The first judicial review

The HSMP Forum was formed to campaign against the changes, which members felt represented a betrayal of the implicit promise of settlement rights which had induced them to sell their homes and uproot their families to move to the UK. Their challenge to the retrospective application of the rule changes succeeded. In January 2008, a High Court judge rejected Home Office arguments that the original scheme held out no promises of settlement to the migrants it attracted, holding that: ‘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 … 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.’ He held that the terms of the original scheme should be honoured; ‘good administration and straight forward dealing with the public require it’. To allow the Home Office to apply the new rules to those who had come under the original scheme would, he said, ‘give rise to conspicuous unfairness and an abuse of power’.

The Home Office response

The Home Office decided not to appeal, but instead issued a policy statement purporting to apply the High Court judgment. The policy said that the new points system would not apply to those already admitted under the old HSMP scheme, but sought to apply the five-year qualifying period to them, arguing that the judge had not dealt with the qualifying period in the earlier judgment and the claimants suffered no prejudice from having to wait an extra year.

The second judicial review

In the view of members of HSMP Forum, this was a further example of Home Office betrayal. They pointed to financial difficulties caused because of the inability to secure a competitive mortgage without indefinite leave to remain; inability to obtain a decent job or promotion without indefinite leave; an inability to leave the UK for more than short periods (for work, for example), because of the rules’ restrictions on travel abroad or the need for visas; the need to pay overseas students’ fees for the whole course, for children who were due to start university here, as well as the psychological and emotional impact of further uncertainty about their future. Some of the Forum’s members, relying on the earlier judgment, applied for settlement after four years on the scheme, but not only had such applications refused, but were also not given a further year’s leave, to enable them to complete the five years. Instead, they were told that their continued presence here was unlawful, and that they were liable to removal.

In the latest legal challenge the HSMP Forum argued that the Home Office policy was unfair, and that the members had a right to be treated in accordance with the rules under which they had been admitted. The judge accepted their arguments. He observed in the Home Office a ‘developing pattern of refusal to acknowledge the clear evidence of hardship and disadvantage’ caused by its rule and policy changes to migrants who had been invited to settle in the country.

Sylvia’s story

Sylvia Wachuku-King was one of those encouraged to settle here and then cruelly betrayed. She left her native Sierra Leone when civil war brought the education of her children to a halt in 1997, and had served in various countries in Africa as a charity development worker. With her salary, she supported her three children, whom she had managed to send to the UK as students. With her masters’ from New York State University and her recognised excellence in her field, she had no difficulty obtaining a one-year HSMP visa in 2003. After obtaining development work in a voluntary and community development charity, she was granted a further three-year stay in 2004. In 2007, she applied for settlement, oblivious to the rule changes. She was told to leave the country – not only did she now need five years, not four, before qualifying for settlement, but she did not earn enough to qualify under the new rules even though she had earned the projected salary she had indicated in her original HSMP application that had been approved.

Sylvia had waited until she got her charity job in 2004, and her three-year visa, before selling land she owned in Sierra Leone. Her sister, brother and children were all in the UK, and she had recently become a grandmother. Her appeal was heard before the High Court judgments established that the rule changes were illegal, and her lawyers’ arguments to that effect were rejected. Fortunately, the appeal was allowed because of her family ties in the UK and the tremendous value of the work, voluntary and paid, that she was doing among Southwark’s refugee and migrant communities. But now, Sylvia, and the hundreds of skilled migrants who had their expectations of settlement dashed by the Home Office, could be entitled to compensation for their treatment.