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Permission granted to HSMP challenge

Permission granted to HSMP challenge

Permission was granted today by Mr Justice Sullivan in a judicial review of the decision to retrospectively change the immigration rules on the qualifying criteria for settlement under the Highly Skilled Migrant Programme. The case will now proceed to a full hearing.

The background is that since 2002 the government has been encouraging highly skilled migrants to come to the UK under a points based scheme. Originally, these migrants would be able to apply for settlement in the UK after four years if they still met the criteria under which they entered and could show they had been economically active in the meantime.  This was later extended to five years.

More controversially, the Home Office significantly re-vamped the entry requirements for the scheme. This was not only applied to new applicants, though, it was also applied to those who had already entered the UK and wanted to apply for settlement after five years. A significant number of these people qualified under the old criteria but not the new ones.

Essentially, they were lured to the UK under false pretences. They have re-settled, left their old jobs behind and often brought their families with them. Yet now the carpet has been pulled out from under them and they are expected to return whence they came.

A similar thing has happened with a change to the criteria for work permits for senior carers. See this Guardian article for a description of the effect this sort of retrospective change has on the human beings concerned.

There are, I think, two main legal arguments being run against this retrospective change. One is that it is retrospective and breaches a legitimate expectation that the highly skilled migrants had when they entered the UK. The other is that the change interferes with the private and family lives they have established here, protected by Article 8 of the European Convention on Human Rights and the Human Rights Act, and the Home Office cannot show that the interference is either necessary or proportionate.

Free Movement
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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