Graeme Kirk
Gross & Co.
gdk@gross.co.uk
The High Court has delivered a major judgement against the British Government in relation to the changes to the UK Highly Skilled Migrant Programme.
The HSMP Scheme was introduced several years ago to encourage highly skilled migrants to take up residence in the United Kingdom. Among the requirements was that an individual applicant had to make his main home in the UK and, as a result of this, many successful applicants sold their homes and assets in their own countries to come to the UK.
In December 2006, the British Government changed the HSMP Rules in a number of different ways, some of which made it impossible for some existing HSMP holders to qualify under the new Rules. Most surprisingly, the new HSMP Rules applied not only to new applicants but retrospectively to existing HSMP holders. As a result of this decision which was vociferously opposed from many quarters, many existing HSMP applicants were refused extensions of stay, and a number had to return home.
Judicial Review proceedings were brought by a group of affected HSMP holders who formed a group called HSMP Forum. Despite a number of unfavourable decisions in Appeal hearings before the Asylum & Immigration Tribunal, the High Court has declared that the retrospective element of the HSMP changes were illegal, and indeed an abuse of power. This means that existing HSMP holders will be allowed to remain on the basis of the old Rules, and those who have already left the country may be able to return, or possibly claim compensation.
This is a major defeat for the Government, but the Government has confirmed that it will not appeal the decision.
It is to be hoped that, in future, the British Government will take note of the many distinguished people who advised them that this approach to retrospective legislation was disgraceful and this will not happen again in the future.
Further information can be obtained from Graeme Kirk on gdk@gross.co.uk.
