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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> HSMP Forum Ltd, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 664 (Admin) (08 April 2008) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2008/664.html Cite as: [2008] EWHC 664 (Admin), [2008] INLR 262 |
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 2008] EWHC 664 (Admin) | ||
QUEEN'S BENCH DIVISIONADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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| 2008 |
B e f o r e :
____________________
| The Queen on the application ofHSMP FORUM LIMITED |
Claimants |
|
| - and - |
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| SECRETARY OF STATE FOR THEHOME DEPARTMENT | Defendant |
____________________
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Solicitors) for the Claimants
Robert Jay QC and Sam Grodzinski (instructed by the Treasury Solicitor)
for the Defendant
Hearing date: 5th March 2008
____________________
VERSION OF JUDGMENT
Crown Copyright ©
Sir George Newman :
HSMP"). Guidance was issued to prospective applicants setting out the criteria which would have to be met and providing them with sufficient detail to self-assess the likelihood that they would score the sufficient number of points to qualify. The mutuality of benefit which the scheme was designed to provide was expressed in these terms:
"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".
state:
"Should this occur those already in the United Kingdom, as skilled migrants, will continue to benefit from the programme's provisions."
This statement confirmed, at least in connection with closure or suspension, that the benefits conferred by the scheme and to be enjoyed by skilled migrants already in the United Kingdom were continuing in character. The statement is consistent with the stated aims of the programme and its framework involving continuity, structured from the date of a migrant's original admission, through stages of extension, leading to ultimate settlement.
various revisions were made to the scheme. As necessary I shall refer to them later. But this application for judicial review arises out of changes to the HSMP which came into force on 7 November 2006 and, more particularly, the application of the changes to those already in the UK as skilled migrants. It has been referred to as the "new scheme". The guidance in connection with the new scheme contained the following statement:
"The
various revisions prior to November 2006 affected initial entry and left unchanged the criteria for the grant of an extension, the new scheme changed the criteria for extensions and settlement and made them applicable to new entrants as well as migrants already in the UK under the old scheme. For this reason, it was no doubt felt necessary to make a reservation in connection with revisions to the criteria for extensions which had not been made before. The Claimant, HSMP Forum Limited, is an incorporated body formed to represent the interests of a number of highly skilled migrants affected by the new scheme. A declaration is sought in this Court that the relevant parts of the changes should not apply to the claimants on one or more of the following grounds:-
(1) unfairness;(2) unreasonableness;
(3) unlawfulness.
Within the allegation of unfairness there are two subheadings, namely legitimate expectation and abuse of power. Within the allegation of unreasonableness the claimants also rely on (i) anxious scrutiny and (ii) failure to treat prior admissions differently. Within the allegation of unlawfulness the claimants rely on (i) the principle of legality and (ii) the Race Relations Act 1976, section 71.
Summary of the Original Scheme
home.
"Q. What kind of work can I do?A. You can undertake any work, for example it could be as an employee, a contractor worker or on a self-employed basis. However, you will be expected to work at a level appropriate to your skills and this will be important when you renew your application to stay in the United Kingdom under the scheme".
It is not clear what importance was to be placed upon this for there is no reflection in the immigration rules of this expectation. And in the same section the question "What will I need to do to qualify to stay after the first 12 months?" was answered in this way:
"A. You will need to show that you are working in a job that is appropriate to your qualifications and experience and that you will continue to be able to do that kind of work. For example if you entered on the basis of your experience in civil engineering you would be expected to be working in the area of engineering or make use of those skills. You will also need to show that you and your family have not had to have any need to use public funds and have not been involved in any criminal activities. Applications are made directly to the
"In addition to scoring at least 75 points in the above areas you will also need to demonstrate:
1. Your ability to continue to work in your chosen field in the United Kingdom.
2. That you have enough savings and/or potential income to be able to support yourself and your family. You will not be allowed any use of UK public funds (for example income support) whilst in the United Kingdom with permission to stay under the programme.
3. That you are willing and able to make the United Kingdom your main
"…. On this you will need to declare that you and your family have not had access to public funds and have not received a prison sentence. In addition 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 you will need to supply evidence of the progress of the business …".
stated as follows:
"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 twelve 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 (e.g. 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".
It can be seen that, despite the hope and expectation and intent on both sides that the chosen field of employment would be taken up, it was accepted also that circumstances might prevent that occurring within the first 12 months and, so long as reasonable steps had been taken, that would not prevent an extension being granted.
HSMP, for example:
"Q. I have already applied successfully underA. 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
This question and answer followed upon a question and answer containing a reservation of a right to change the scheme.
HSMP was enshrined in the Immigration Rules (see HC 583, rules 135 A-H). The rules made clear that the entry criteria were appraised once and for all. The general requirements needed to be satisfied on an ongoing or continuing basis. Both an extension of leave and settlement required ongoing satisfaction of self-sufficiency and migrational intent. But it is to be noted that to obtain settlement there were additional requirements in connection with the lawful economic activity. Whereas for an extension of leave to remain to be granted the applicant needed to have taken "all reasonable steps to become lawfully economically active" (rule 135D(ii)), for the ultimate indefinite leave to remain the applicant needed to be at the time lawfully economically active (rule 135G(iv)).
The New Scheme
statement of Susan Shaw of the Border and Immigration Agency of the Home Office, made for the purposes of this application for judicial review, the justification for the new policy embodied in the new scheme was derived from an analysis of data, carried out by the Border and Immigration Agency, which, it is said, showed that the existing system contained a number of weaknesses, in particular:
- "The criteria were not the best indicators of economic success. This meant the scheme was not always fully effective in its aim of attracting and selecting the most highly skilled migrants to the UK.
- There was no robust test at the extension stage that assessed how migrants performed in the UK labour market resulting in some migrants being granted an extension to remain even if they were not contributing effectively to the UK economy."
statement Susan Shaw observes:
"There is no one definition of whether an applicant was performing highly skilled work. However salary levels and job
In the light of these conclusions it was decided to make a number of changes, including refocusing the initial points test on objective attributes, which it was believed would better predict labour market success and "introducing a points test at the extension stage". The statement continues:
"It was considered that the previous extension test, whereby it was simply enough for the applicant to have taken all reasonable steps to become lawfully economically active since his arrival in the UK, had not proved to be a sufficiently robust measure of whether the applicant had been making an economic contribution to the UK as a highly skilled migrant."
Secretary of State for the purpose of rule 135A of the Immigration Rules.
Application to those Successfully Admitted Under HSMP
states in paragraph 15 of her statement:
"We carefully considered whether or not to apply the extension/FLR test only to those migrants who were new to the
16. Recognising however that there would be a number of
states:
"Ultimately, we were not persuaded of the need to restrict the FLR test to new applications. Primarily, this was because we considered that the new FLR test, in combination with the transitional arrangements (in particular allowing an easy entry to the Work Permits scheme for those who did not qualify for
18. Further, it would have taken at least 5 years for the rules change to achieve the intended policy outcome of ensuring that those passing an extension test were those making the greatest contribution to the UK economy."
The Issues
"… individuals with leave to enter or remain under the
This conclusion echoes the terms of a letter dated 16 November 2006 from the Immigration Law Practitioners Association to the Minister (see paragraph 24 below).
The Committee went on to state:
"The immediate effect of the tightening of the requirements for extending leave is to make it likely that a considerable number of those highly skilled migrants who have moved to this country and made it their main
home under the HSMP. Further, Susan Shaw accepts that the tightening of the requirements will mean that highly skilled migrants will not qualify for an extension or settlement where, under the scheme prevailing at the time of their entry, they would have done so. I accept the Committee's finding on the likelihood of the occurrence of circumstances associated with a decision to join the scheme and it is the agreed legal consequence of the impact of change on admitted migrants which will have to be considered. What then of the complaint of retrospectivity?
State for Nationality, Citizenship and Immigration at the Home Office, (Appendix 2 to the report) Mr Byrne stated as follows:
"… there are a number of issues that I feel it is important to clarify. Firstly, you mention that the Committee is concerned about the 'retrospective application' of the changes to
The Committee dismissed the Government's arguments on these grounds:
"….. changing the relevant criteria to be met by those who have already made their
home, subsequently adopted by the Joint Committee in its report. The letter recorded that there had been a lack of formal consultation or notice concerning the measures and that the measures being announced on 7th November 2006 came into effect on 8th November. The letter raised an issue as to the content of a legitimate expectation that the highly skilled migrants were entitled to rely upon. In his response, in a letter dated 24th November 2006, the Minister replied:
"We have made these changes in order to make sure that the people who succeed under the programme are those who will make the greatest contribution to the UK economy, to make the requirements clearer and more objective and to make sure that the programme is robust against abuse."
stated:
"I do not accept that those who receive a grant of leave in a category have a legitimate expectation that the rules for further grants of leave within that category which existed at the time of their first grant of leave will apply to them for the rest of the time that they spend in the UK. The rules must be capable of being changed from time to time so that the Government can carry out its policies – in this case, to ensure that those granted further leave to remain under
8. Indeed, it has never been guaranteed that applicants would qualify for further or indefinite leave to remain, so there has always been the risk of not qualifying for further leave. We have merely tightened up the rules. I also do not believe that this is incompatible with the requirements under
home" (see para 25 above). The avenue to settlement involved a staged process to having permanent leave to remain. Clearly to have referred to the need to have a "permanent residence" within the United Kingdom before a grant of permanent leave to remain, would have been premature and inappropriate. It is not clear to me what is meant by "severing all connections with" a country of origin. I doubt whether such severance ever occurs, even after permanent settlement. His view provides no answer to the circumstances of likely upheaval, financial investment and substantial change which had been laid out by the Joint Committee and the letter of 16 November 2006.
Submissions
HSMP points-based criteria.
The Transitional Measures
Secretary of State has relied upon them in this Court. The most relevant aspect of the measures is that applicants who cannot satisfy the new HSMP criteria may be able to switch into Work Permit arrangements, the entry criteria for which have been relaxed. The criteria which have been relaxed to enable HSMP migrants to move to Work Permit employment are:
(1) the resident market test (the requirement to advertise the post to prospective UK and European Economic Area nationals in advance of the application) will be waived, provided that the applicant has been in post for at least eight months, if the grant of leave was for 12 months or less or at least 12 months if their grant of leave was for more than 12 months.(2) employers are to have a period of grace, namely 42 days from the date of the letter telling the applicant that they did not pass the points test to apply for a Work Permit. A self-employed person who does not pass the points test on an application for an extension could be granted leave under the transitional arrangements for self-employed people subject to conditions being satisfied.
HSMP. An applicant under the Work Permit scheme depends upon his employer making an application for a Work Permit. If granted it is in connection with that particular employment. Should the particular employment cease for reasons outside the control of the applicant then a fresh Work Permit with a fresh employer would have to be sought. That could arise at any time. Those acting under the Work Permit scheme are vulnerable to exploitation in connection with the terms and conditions of their employment. Whilst families can reside with the holder of the Work Permit, the status carries considerable uncertainty and potential for disruption to family life. The path to settlement would from the time of the grant of the Work Permit be five years. Until 1st April 2008 was not known, so far as a highly skilled migrant is concerned, whether any period of time here as a highly skilled migrant would count towards the five year qualification period.
HSMP.
stated to be that the defendant "considered that the new FLR test, in combination with the transitional arrangements … meant that only a small percentage of people would actually have to leave the country …" (see para 17 Susan Shaw).
Secretary of State submitted that it was desirable in the interests of maintaining the integrity of the new scheme that those who did not meet its criteria should be removed from it, but not necessarily from the country. I am unable to see how the integrity of a new scheme is undermined by accepting the consequences of what was seen as an inadequate old scheme.
The Impact of the New Scheme
statement provides statistical evidence on the impact of the new scheme on applications for further leave to remain, sometimes referred to as "extension applications". Her statement shows that the refusal rate at the extension stage before November 2006 was 6%, taking into account withdrawn and rejected applications. If rejected and withdrawn applications are taken into account the figure is adjusted to between 3% and 4%.
HSMP extension applications were made, 6,890 were granted and only 570 were refused. Thus only 7% of the further leave to remain applications were refused.
HSMP test in any event on the basis that there was no evidence of any earnings whatsoever during the preceding 12 month period, so the differential is 4% of all further leave to remain applicants.
HSMP migrants to leave the United Kingdom who would not otherwise have done so under the old FLR test is very small. The defendant's view is that this small number generally represents those individuals who were not making a significant contribution to the economy in the highly skilled work for which they entered in the first place.
view it seems material to ask, if the new changes are likely to affect so few a number of people, what interest is there to be served by subjecting a limited number of people to considerable hardship which they would not otherwise have faced. Individuals have made witness statements detailing the hardship they face.
The Race Equality Impact Assessment (the REIA)
Home Office were under a duty to carry out an REIA. In the normal course such an assessment would be published before changes in the rules were announced. On this occasion that was not the case. On 6th June 2007 the Commission for Racial Equality wrote to the Director General of the Border and Immigration Agency commenting on the fact that the assessment had been "recently published in respect of the changes to the highly skilled migrants programme". The letter of 6th June also detailed various significant concerns on the part of the Commission in connection with the changes. Since the assessment was drawn up before the rules changed in November 2006 it is material to focus on one or two parts of the understanding on the part of the Home Office as to the impact of the changes and the need for the changes.
"We do, however, expect a reduction in the number of successful applications for extensions of leave, because the new test is more arduous than the old one. However, we hope to retain most people who are currently in the UK with leave to remain under the
The assessment noted:
"Overall, the change will therefore work to the relative disadvantage of non EEA nationals and, conversely, to the relative advantage of EEA nationals, but the effect will not be great."
The Law
Legitimate Expectation
statements or practice announced in connection with the original HSMP. Mr Fordham QC has drawn attention to the developments which have taken place in the law relating to legitimate expectation. The Court of Appeal has warned against making separate compartments of law where, in truth, a single principle or interlocking principles are in play (see Nadarajah [2005] EWCA Civ 1363, para 49). He submits that a number are in play:
(1) the existence of clear, express representations that the criteria for the grant of extensions would not be changed so as to preclude settlement being obtained in circumstances where it had been represented it would be available;(2) the clear practice prior to November 2006 that revisions to the scheme were not to affect those already on the scheme;
(3) the conspicuous unfairness involved in encouraging migrants to sever links with their
(4) the absence of any pressing public interest requiring that she should frustrate the expectation of highly skilled migrants who had met the criteria of the scheme which they had joined;
(5) the abuse of power involved in frustrating the migrants' path to final settlement in the UK when the migrants had already embarked on the journey.
v Newham LBC [2002] 1 WLR 237 that the answer to the question, to what has the authority committed itself, can often be dispositive of a case. Mr Jay QC submitted that the insurmountable difficulty facing the Claimant was that no clear and unequivocal representation had ever been made to the effect that the criteria to be applied to FLR extension applications would remain unchanged. He adopted the analysis of the position contained in a judgment of the Asylum and Immigration Tribunal in AA & Others (Highly Skilled Migrant: legitimate expectation) Pakistan [2008] UKAIT 00003 at paras 87 to 95. The Minister's conclusion in his letter dated 24 November 2006 (see para 25 above) bears a striking resemblance to the conclusion in paragraph 95 of the AIT judgment:
"Their only legitimate expectation is that their applications will be judged on the basis of the rules and criteria under the
v Secretary of State for the Home Department [2007] EWHC 3221 (Admin)).
HSMP up to November 2006, not a textual analysis of its parts interpreted in isolation from the other parts of the scheme. My analysis, which is to a large extent laid out in the preceding paragraphs of this judgment, is 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
(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.
stated that admission to it gave no guarantee that the criteria at the extension stages would not change during a migrant's participation in the scheme. But I do not think the defendant can escape from the consequences of having failed to make that clear. The stages leading to permanent settlement and security of status would have been of acute interest and significance to applicants. They received considerable attention in the guidance.
stated that even if the programme was suspended:
"those already in the United Kingdom, as Skilled Migrants, will continue to benefit from the programme's provisions".
The later guidance stated in answer to the question "What if the scheme changes?" and "I have already applied successfully under the 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 the
statement cannot be read as applying to such revisions. I am not so much influenced by the reference to "revisions" as I am by the "important … note" in general terms: "… once you have entered … you are in a category that has an avenue to settlement". This seems to me to accurately describe the character and intended manner of operation of the scheme.
Overriding Public Interest
(1) there are cogent macro-political reasons for applying the new and more robust test to all(2) between January 2002 and October 2006, 49,188 applications were granted;
(3) the Court should not adjudicate on the economic interests of the UK;
(4) account should be taken of the transitional arrangements.
HSMP migrants within the changes. On the defendant's own case:
(1) the number of migrants likely to be removed is small; and(2) an appreciable number will be able to remain under the Work Permit scheme.
The macro-political aspect of the changes rests with the stated objective of introducing a more effective and robust scheme. That is not to any degree undermined by a small percentage who are not making the contribution expected of them and when the level of contribution meets that originally set by the scheme.
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 straightforward 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. I am satisfied, following the three questions set out in Bibi, that the defendant proposes to act unlawfully and the Court should intervene.
The Race Relations Act 1971
value of the original scheme was that it could take account of the difficulties faced by such persons on the labour market, which cause them, despite reasonable efforts to obtain employment, to suffer periods of unemployment or employment in less highly skilled positions. The robust character of the new scheme is less apt to accommodate these realities. The Commission highlights the failure of the assessment to take account of "the ethnic penalty in the workplace".
statement simply cannot sustain the case advanced for the defendant.