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HSMP - a new hope
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Tougher migrant rules 'illegal'

Skilled migration rules ‘unlawful’


Joint Committee On Human Rights Twentieth Report
1  Introduction

Purpose of our report

1. In this Report we consider the human rights compatibility of certain changes in the Immigration Rules concerning highly skilled migrants which have caused widespread concern because of their harsh impact on people who have made this country their main home in reliance on what they have previously been told by the Government.

2. The Government introduced the Highly Skilled Migrants Programme in 2002 to encourage highly skilled people to come to the UK to work. The programme provides a route to permanent residence if certain criteria are satisfied. The Government made it a precondition of entry onto the programme that individuals "intend to make the UK their main home." Thousands of highly skilled people relocated their homes, families, jobs and businesses to the UK as a result.

3. In 2006, however, the Government changed the rules. It extended the required period of residence from 4 to 5 years and tightened the requirements which have to be met in order to qualify for an extension of leave. Those changes apply not merely to future applicants under the Highly Skilled Migrants Programme, but to the large number of individuals who have already relocated to the UK under the programme. As a result, a very significant number of people who have moved their homes, families and careers to the UK in the expectation that they would be eligible for permanent residence now find that they are not in fact eligible because the rules have changed. Instead of becoming permanently resident, as they had been led to expect, they and their families now face deportation. In our view this raises a significant human rights issue about the compatibility of the changes with the right to respect for home and family life, on which we now report.

4. We have exchanged correspondence with the Minister, which is annexed to this Report. We have also received a written submission on this matter from a group called the Voice of Britain's Skilled Immigrants ("VBSI"),[1] and been sent information about the impact of the changes by the HSMP Forum, an organisation formed to campaign against the changes.[2]

The Highly Skilled Migrant Programme

5. The Highly Skilled Migrant Programme (hereafter "the HSMP") is designed to allow highly skilled individuals with exceptional skills to come to the UK to seek work or opportunities for self-employment.

6. Those applying for the first time to the HSMP must go through a two-stage application process. First, they must apply for a HSMP approval letter for entry to the programme, in which the Home Office confirms that the person meets the criteria specified for entry to the UK under the HSMP. Second, they must meet all of the requirements of the relevant Immigration Rule in order to obtain leave to remain as a highly skilled migrant.

7. One of those requirements was that the person concerned must "intend to make the United Kingdom his main home."[3] This express requirement in the Immigration Rules was reflected in the Guidance Notes for those making HSMP applications, which specifically stated that individuals would be asked to provide a "written undertaking" that they would make the UK their main home.[4]

8. The HSMP provides a route to becoming permanently resident in the UK. Before the changes introduced in April 2006 (considered below), an applicant to the HSMP who met the criteria would be granted initial leave to enter for a year.[5] At the end of the first year's leave, highly skilled migrants were eligible to apply for a 3 year extension of leave, which would be granted if they demonstrated that during the first year they had taken all reasonable steps to become lawfully economically active. At the end of the 3 years' leave, they were eligible to apply for indefinite leave to remain ("ILR") which would be granted if the person could show that they have had a continuous period of at least 4 years as a highly skilled migrant and that they had become lawfully economically active in the UK.[6] The Guidance Notes explained all this unequivocally to applicants. They were told that, once they had entered under the HSMP, they were in a category that has an avenue to settlement, and that they would be allowed to stay and apply for settlement after four years' qualifying residence.

9. In short, when the HSMP was introduced in 2002, a highly skilled migrant who met the initial criteria would be granted a year's leave if they could also show that they intended to make the UK their main home, then a 3 year extension if they could show that they had taken all reasonable steps to become economically active in the UK, and after 4 years would be granted permanent residence if they could show that they actually are economically active. In return for a commitment to permanent relocation, the HSMP held out the prospect of further leave and ultimately settlement.

10. Not surprisingly, in light of the requirement that people on the HSMP intend to make the UK their main home, individuals with leave to enter or remain under the HSMP have taken a number of important and long-term steps to establish their main home in the UK: they have left permanent jobs in their home countries, sold their homes, relocated their families (spouses and children) to be in the UK also, entered into financial commitments such as mortgages, transferred businesses, entered into long term financial arrangements, made long term economic and contractual plans, and the lives of their families have been transferred (for example, spouses have new jobs, children new schools).

11. Thousands of individuals currently on the HSMP have acted in this way to fulfil the Government's requirement that they make the UK their main home, and have done so in the expectation that, provided they make their main home here and remain economically active, they will be eligible to apply for indefinite leave to remain after the prescribed amount of time.

12. According to a Written Answer, between January 2002 and October 2006 the total number of applications granted under the HSMP was 49,188.[7]

The Immigration Rules

13. The Immigration Rules are the Rules made by the Home Secretary under the Immigration Act 1971.[8]

14. They constitute a statement of practice, as laid before Parliament by the Home Secretary, to be followed in regulating entry into, and stay of persons in, the UK. The Home Secretary is obliged by statute to lay before Parliament statements of the Rules, or any changes in the Rules.

15. Statements of changes in the Immigration Rules are subject to negative resolution procedure. The Government's practice is not to provide statements about the compatibility of such instruments with the European Convention on Human Rights.

1   The submission is available under "Research documents" on VBSI's website, Back
2   Public submissions made by the HSMP Forum are available on its website, Back
3   Immigration Rules (HC 395), para. 135A(ii). Back
4   HSMP 1 Guidance Notes, version 06/06, para. 22. Back
5   Immigration Rules, para 135B. Back
6   Immigration Rules, para 135G. Back
7   HL Deb, 28 November 2006, col WA47 (Baroness Scotland). Back
8   Section 3(2). Back

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