UK tribunal sides with HSMP visa holder denied extension under new rules
18 May 2007
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An appeal by a gentleman who was served a deportation order by the British government has been upheld. His application for extension under the Highly Skilled Migrant Programme (HSMP) was rejected by the government after changes to the program were applied retrospectively. The gentlemen then challenged the order under human rights laws.
The Highly Skilled Migrant Programme allows highly skilled, foreign-born professionals to live and work in the United Kingdom if they successfully qualify under a points-based system. Usually referred to as an HSMP visa, it has become very popular since its introduction in 2002. The program has undergone a number changes over the years.
On 07 November 2006, the program was temporarily suspended while a major overhaul was implemented. On 05 December it was reopened under new rules, and the changes were applied retrospectively ... those who successfully came to the UK under the previous HSMP criteria must qualify under the new criteria if they wish to obtain an extension to their HSMP visa.
George Joseph, and Indian national who holds a PhD in chemistry, arrived in Britain under earlier HSMP rules. He sold his home and left his job in India to relocate to the UK. After the changes to the HSMP program were enacted, Joseph was unable to qualify for an HSMP extension and he challenged his notice to leave the UK before the Hatton Cross Tribunal.
Upon his arrival in the UK, Joseph was presented with "guidance notes" which stated he could expect a route to settlement under the HSMP scheme and that revisions to HSMP would not affect his application. As long as he was economically active, or had taken all reasonable steps to become so, he could expect his HSMP visa to be renewed. The court agreed with him.
"This case is in fact stronger than any 'legitimate expectation' cases, as here the appellant changed his position to his detriment as a result of what he was told," said Judge Digney of the tribunal court.
"There is no overriding public interest that demands here the treatment to which the appellant was subjected ... I conclude that the decision of the respondent is therefore not in accordance with the law."
Up to an estimated 16,000 people who were granted HSMP visas under the old rules may be affected by the retrospective application of the new rules. Those who cannot qualify under the new HSMP rules, or qualify under other immigration categories, face deportation when their visas expire.
The tribunal courts decision is a major victory that may offer relief to many people caught up in the changes.
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