New judicial review possible for UK highly skilled migrants

Media Center » HSMP extensions, July 2008

A recent ruling by a UK High Court has resulted in visa extension rules from a previous and easier version of the Highly Skilled Migrant Programme (HSMP) for some individuals. Now the group who filed that judicial review are pushing to have the old rule of four years for permanent residence put back in place for HSMP visa holders who applied before April 2006.

The HSMP was a points based immigration program that allowed highly skilled individuals from around the world to live and work in Britain if they could score enough points based on criteria such as age, past earnings, and qualifications. It was replaced this year by a very similar scheme called Tier 1 (General), part of the UK's new five-tier points based system.

The HSMP Forum Ltd, an advocate group for HSMP visa holders, sent the UK Border Agency a letter stating their concerns. The letter warned of another judicial review if action was not taken within fourteen days towards granting the old four-year settlement rule for those who entered the UK under the HSMP prior to April 2006.

In the letter, the HSMP Forum Ltd stated that part of the recent ruling concerned the mutual benefit between both the United Kingdom and those who came to the UK under the HSMP. By encouraging people to immigrate and contribute their talent and skills to the UK economy, they would have the chance to live and work in Britain with a pathway to eventual settlement.

"There cannot be the slightest doubt that qualification for settlement after four years was an integral part of the package of measures by which migrants were encouraged to enter the scheme," the letter stated. The HSMP Forum Ltd provided evidence in the letter to back up their argument.

According to the HSMP Forum Ltd, guidance in 2002 stated that indefinite leave to remain in the UK could be acheived in four years. Their letter also quotes a Q&A section from HSMP guidance released in 2003:

"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 they were submitted.

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 4 years qualifying residence regardless of revisions to HSMP.
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It remains to be seen how the UK Border Agency will respond -- so far there has been no reply. However, the HSMP Forum Ltd won their previous case and they have a number of sympathetic ears, such as the Joint Committee on Human Rights.

In August of 2007, the committee released a report entitled 'Highly Skilled Migrants: Changes to the Immigration Rules' in which they recommended amending the rules so that the stricter visa extension requirements and longer qualifying period for settlement did not apply retrospectively.

The HSMP Forum Ltd has already won their case on the first recommendation -- it's possible that they have a good chance of repeating their success with the second.