08.04.09
UK immigration: Highly skilled migrants win legal battle
Justice Cox, guardian of equal rights, friend of HSMP
The UK government have failed in their latest attempt to enforce ‘unlawful’ changes to the Highly Skilled Migrant Programme (HSMP) visa holders.
The High Court ruled on Monday in favour of the HSMP Forum, which means the UK government must stick to their original commitment to HSMP visa holders who applied before November 2006.
HSMP visa holders were originally told they would have to work in the UK for four years but then the Home Office unfairly applied retrospective changes to those who applied before the new changes were introduced, meaning they would have to work an additional one year in order to be eligible for Indefinite Leave to Remain.
The HSMP Forum won the Judicial Review against the Home Office on 6th April with the High Court ruling the Home Office acted unlawfully in applying the changes retrospectively.
In her judgment, Justice Cox DBE remarked, “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.”
The executive director of the HSMP Forum, Amit Kapadia, welcomed the landmark victory, “The Home Office’s continued attempts to apply policies which cannot withstand legal scrutiny only suggests that there is a dearth of skilled policy makers and Ministers. HSMP Forum hopes that the Home Office will learn its lessons and avoid a repetition of applying such unlawful retrospective legislations in the future.”
Are you one of the thousands of highly skilled workers who have contributed to the UK work force and economy, paying your taxes and building a life in the UK? How have you been affected by the Home Office’s unfair UK immigration policy? Leave your comments below.
Published by Gareth McConnell Global Visas in Global indian immigration and visa news, UK immigration
April 8th, 2009 at 6:42 pm
Now my family’s stay is already 5 years. I am looking for claiming compensation.
April 9th, 2009 at 10:34 am
By the time this court ruling was issued, many HSMP visa holder like me, have now completed the new 5 year requirement and obtained Indefinite Leave to Remain under the new rules.
In the process, though, I have incurred additional expenditure to comply with the new requirements. Most of this was through increased fees paid to the Home Office for new application forms, and annual increases in fees as a result of the extra year required before submitting applications. This amounts to a few hundred pounds. It seems fair to me to claim these additional costs back as they were a direct result of the “unlawful action” of the Home Office?
It was cerainly stressful to suddenly have to deal with new Home Office requirements applied retrospectively – just adding to the pressures of an already stressful professional career. Fortunately I complied with the new retrospective requirements imposed by the Home Office, but can only imagine the extreme stresses and mental anguish experienced by others less fortunate than me.
I was also fortunate that my career and mortgage opportunities were not affected by this issue. But I understand that several other HSMP visa holders did suffer additional losses in these areas.
This has nothing to do with illegal immigrants to this country – these are the migrants that this country actually does want because they are all law-abiding, hard-working and skilled individuals who contributing to society, not sponging off the state. The majority of HSMP visa holders earn well above the average wage, and as such, pay income tax and NI at levels above the average, while at the same time being prohibited from claiming any benefits from the state.
April 9th, 2009 at 11:09 am
Hi
I am on HSMP visa since Oct 2005, I also have one year Isle of Man Work Permit before this.Does the Isle of Man WP count towards the total duration,if I want to apply for Indefinite leave to remain or do I need to complete 4 years of HSMP.
Would be grateful for any advice.
Thanks
BP
April 10th, 2009 at 1:11 pm
I was wondering if this applies to Work Permit holders as well? The law change affected me as well as I have had a valid WP since Dec 2004. My 5 years is almost up but I would like to know if I need to wait 7 more months or if I can apply now? Any advice would help.
April 10th, 2009 at 4:16 pm
Jayant, I would suggest you make an application, and if they decline, appeal.
Personally, we found it impossible to get a mortgage. Banks were demanding a 20% deposit (remember this was back in the days of NINJA loans). Can’t really complain though given the subsequent caving in of the property bubble.
April 12th, 2009 at 8:52 pm
I was wondering if this applies to Work Permit holders as well? The law change affected me as well as I have had a valid WP since MAY 2005. My 4 years is almost up but I would like to know if I need to wait 12 more months or if I can apply now? Any advice would help
April 13th, 2009 at 2:39 pm
This is certainly good news. One point that I am not clear on at the moment is that in your article you mention this applies to HSMP Visa’s issued prior to Nov 2006, however I have seen other articles indicating the cut-off is April 2006.
Was this specified by the ruling or is it up to the Home Office to decide if it applies for just those HSMP visas issued prior to April or all HSMP visa’s up to the termination of the program in November of 2006?
Any thoughts would be great!
April 14th, 2009 at 9:06 am
I think (I am not sure) this only applies to HSMPians…and not work permit holders, but we could make the same argument as HSMPians, as we were informed by HO to have an ILR in 4 years at the time of issuance of Work permit. Hope someone create and lead a work permit forum argu the same case. As my wp was done in April 2005 and have just about finised 4 years on WP ( not to mention the expensive 3 years as student on top of it)..Harsh
April 14th, 2009 at 10:34 am
It only applies to HSMP, not Work Permit
April 14th, 2009 at 3:28 pm
The Home Office have released the following press release:
“Prior to 3 April 2006 the continuous leave requirement for indefinite leave to remain (ILR) under the highly skilled migrant programme (HSMP) was that migrants should show that they had spent four years’ continuous residence in the United Kingdom. The four year qualifying period was increased to five years’ qualifying residence on 3 April 2006.
The HSMP Forum Ltd brought a Judicial Review against the Home Secretary on the basis that those who entered onto the HSMP before the qualifying period for ILR was increased from four to five years, should be eligible for ILR after four years on the scheme. The judge found in favour of the HSMP Forum on this point. A copy of the judgment can be found on the BAILII website, on the right side of this page.
We are currently looking into implementing the court’s decision. We will publish our remedies as soon as they are finalised and migrants who believe they may be affected by the judgment should check this website regularly.”
Global Visas will also keep you up to date on the latest developments.
April 14th, 2009 at 10:41 pm
Hello, thanks that this judgement has been made. However, for me, it is only half way to justice, as I had to get FLR instead of ILR last May and 4 years were completing then. Now, this May, I am completing 5 years and they are announcing this decision. This leads me to comment/ask following:
1- The justice would be really served if the people who have completed 5 years on HSMP and were affected by Home Office decision, now are given UK passports directly instead of ILR. Can this be done?
2- There is news everywhere that Migrants could get millions in compensation, which they surely deserve e.g.
However, I want to ASK, how can POOR migrants (those who were affected by this rule) apply for that. What is the ROADMAP for them after this ruling…The ways they were affected are many e.g.
1- They couldn’t claim benefits while they were jobless (I was).
2- They could claim child allowance (I had two children)
3- They couldn’t apply for council house (I deserved that at one time)
4- They had to waste upto 1 year before applying for ILR etc.
Any way where is the accountability of the home office now?
April 17th, 2009 at 3:34 pm
Is there anything we can do (as WP holders) to be included in this decision? I think it is unlawful for us as well, and the main thing on the back of the WP document, it is clearly stated that if you spent 4 contiouse years in the UK you may be able to apply for ILR. so it is clearly stated in the WP conditions you can all check yours.. any ideas how to battle this?
April 17th, 2009 at 3:37 pm
When I said ILR in the condition it said ”remove conditions attached to the work permit”
thanks
April 24th, 2009 at 10:17 am
The UKBA have stated policy and procedures for all those affected by the judgment will be published on or by 20 May 2009. As soon as these changes are published they’ll be uploaded onto the Global Visas website.
May 14th, 2009 at 11:14 am
Hi There:
I tried to get mortgage from a bank with 35% deposit but I was refused because currently, I am on HSMP visa and waiting for the indefinite leave to remain(ILR) in the UK. Is there anyone aware of that rule which denies the HSMP applicant from gettting mortgage? Thanks in advance for the feedback.
Cheers.
May 22nd, 2009 at 6:07 pm
Hello.
I was granted my HSMP on 5th October 2005. I understand I am now eligible to apply for ILR as of 5th Oct this year. What I am unsure of, is whether I am entitled to any refunds or financial settlements.
I was issued a 1 year HSMP visa on Oct 5th 2005, then 1 year later a 4 year visa as the changes were made by the home office during my 1st year.
Any information you have that could help me would be wonderful.
Many thanks.
May 22nd, 2009 at 7:30 pm
Hi Mark, really depends on if you’ve been out of pocket due to the retrospective changes they applied to people before april 06?
Sounds like you are one of the lucky few tho that don’t have to wait another year for ILR!
By the sounds of things congrats, if u need help with your application get in touch!
May 27th, 2009 at 4:56 am
i had WP nearly 4 years and wondering if i can apply and i got my visa before april 2006 please help
August 1st, 2009 at 7:29 pm
This should be extended to work permit holders as well and the 5 year term should not be applied retrospectively to them either. i.e. those who obtained work permit before November 2006.
November 15th, 2009 at 8:31 pm
15 November 2009 at 8:31 PM
It is always good to know problems and solutions. I liked it and I trust it is beneficial to everyone (HSMPians). I have one querry what is the threshold (time limit) to make a compensation mentioned in the judgement?(for HSMPians)