Resources & Case Law

Case Law

Victory for Highly Skilled Migrants in the High Court
R (on the application of HSMP Forum Ltd) v SSHD (2008) EWHC 664

Facts: In January 2002, the UK government introduced a new way of allowing individuals to migrate to the UK. It represented a change in policy of managing immigration. Unlike the previous policy of legal control designed to meet the migration of those who unilaterally decide to come to the UK, this policy had the aim of encouraging people to come to the UK, if they could meet the criteria outlined under the scheme known as the Highly Skilled Migrant Programme. This ‘migration route’ was designed to provide an avenue to settlement in the UK comprising an application for an extension of leave to remain being made and, if granted, an application for settlement after a further period of time.

In October 2003, April 2005 and April 2006, various revisions were made to the scheme. These only affected initial entry and left unchanged the criteria for the grant of an extension. In November 2006, however, a new scheme was introduced which changed the criteria for extensions and settlement and made them applicable to new entrants as well as migrants already in the UK under the old scheme. This application for judicial review arises out of changes to the HSMP, which came into force on 7 November, and the application of the changes to those already in the UK as skilled migrant.

Held: The High Court held that the application of the new scheme introduced in November 2006 to those already in the UK as skilled migrant is unlawful. In reaching this decision, Sir George Newman said:

The Secretary of State (the defendant) did not expressly state in the policy guidance in relation to the old scheme that admission to it gave no guarantee that the criteria at the extension stages would not change during a migrant’s participation in the scheme. Indeed, the January 2002 guidance stated that even if the programme was suspended: ‘those already in the UK, as Skilled Migrants, will continue to benefit from the programme’s provisions’. The defendant therefore cannot escape from the consequences of having failed to make that clear.

There are no significant macro-political reasons for including admitted HSMP migrants within the changes. Since nearly 50,000 migrants have entered under the scheme, and only a small percentage are clearly not making the financial contribution expected of them, the scheme, as originally introduced, was according to its own terms, seemingly successful. In any event, on the defendant’s own case, the number of migrants likely to be removed is small, and an applicable number will be able to remain under the Work Permit scheme.

There is insufficient public interest which outweighs the unfairness that the changes visit upon those already admitted under the programme. There is no good reason why those already on the scheme shall not enjoy the benefits of it as originally offered to them. Good administration and straightforward dealing with the public require it. Not to restrain the impact the changes would give rise to conspicuous unfairness and an abuse of power.

Comments:

In 2007, the Parliamentary Joint Committee on Human Rights conducted an inquiry into the changes in the Immigration Rules to which the new scheme gave rise. In summary, the Committee found that the new rules were retrospective in effect, and could not be justified as proportionate. The committee found the following:

‘ … 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).’

In view of this, and the potential hardship to skilled migrants under the old scheme, this is a welcomed decision. However, it is by no means certain that the higher courts will uphold this decision. It is to be noted that in the AIT decision of AA and others v SSHD (2008) ULAIT 0003, the Tribunal held that highly skilled migrants who were admitted to the UK before the rules changed in November 2006 have no legitimate expectation that their applications for further leave to remain will be determined under the same rules as were in force when they were admitted. In reaching that decision, the panel said that the 2002 guidance, ‘had to be read in context with the rest of the guidance, and that it made no clear and unequivocal representation that the then current rules and criteria would always be applied to the appellants’. Even if a legitimate expectation had been created by an express promise, the panel observed that public interest would outweigh fairness in this case because:

The representation falls within the remit of the ‘macro-political’ field;
The representation was made not to a ‘discrete’ but to an ‘innominate’ and potentially very large class;
The refusal to allow the appellant to settle and work in the UK does not impinge at all upon his right to respect for his private life. It merely restricts the location in which he is able to conduct his economic activities. It has nothing to do with those features which are integral to a person’s identity or ability to function socially as a person; and
Even if Article 8 was engaged, the return of the appellant in this case was proportionate because once it is recognised that it is legitimate to control the flow of economic migrants, it is difficult to see what other measure the Respondent could have taken in pursuit of his objective. The return of a family to their home country, from which they have been estranged for only a matter of months appears, on the face of it, to be a proportionate response to the overall economic well being of the UK.

Ultimately, the determinate question is how far the higher courts are willing to interfere with the immigration policies of the Secretary of State, and the extent in which they are willing to extend the ambit of substantive legitimate expectation.

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Defeat for Non-EEA National Family Members
KG (Sri Lanka) & AK (Sri Lanka) v SSHD (2008) EWCA Civ 13

Facts:

Both appellants were unsuccessful asylum seekers from Sri Lanka, who sought to remain here, when otherwise they would have no right to do so, as family members of EU citizens who had subsequently moved to this country. The relationship relied on by KG was his brother, who became a German national in 2001. He entered the UK in 2006 and applied for a residence permit. In AK’s case, the Union citizen whose status he relied was his cousin, an asylum seeker in France who obtained French citizenship in 2000. In 2005, she exercised her rights as a Union citizen and moved to the UK.

Main issue:

The main issue in the case concerns the interpretation of Regulation 8 (2) of the Immigration (EEA Regulations 2006), and whether it has incorrectly transposed Article 3 (2) of Directive 2004/38 by requiring prior residence of other family members in an EEA state in which the EEA national also resides. The court also took the opportunity to deal with other issues regarding the interpretation of the Directive.

Decision:

1 Relying on the case of Mrax and Commission v Spain, the appellants argue that there is no need for prior residence in an EEA state, as other family members (OFM) can rely directly on the free movement rights of union citizens when arriving from outside the Community. LJ Buxton, giving the leading judgement, rejects this. In his view, the two cases rely on are mainly concerned with spouses of Union citizens, who are very different from other family members. Recital 2 of Directive 2004/38 also describes the free movement as freedom of the internal market, thus assuming movement from one member state to another. The rights of family members are likewise on this basis to be limited to movement within the community in company of the worker who is moving from one member state to another. He concedes however that spouses may arrive at the border from outside the community, and that the rights granted to Union citizens by Directive 2004/38 can apply in such cases. He accepts that this does not fit with the concept of movement within the community. He also agrees that Mrax and Commission v Spain can be taken to establishing that
“ community rules as to admission of spouses of union citizens may override national immigration rules”

2 The appellants also argue that the principle underlying Directive 2004/38 is the encouragement of the community value of family reunion. LJ Buxton rejects this and says that community law recognises the rights of free movement on the part of relations not to support family values, but to make real the free movement rights of union citizens, who may be deterred from exercising the rights if they are unable to take their family members with them.

3 Regarding the case of Jia, LJ Buxton takes the view that it does not undermine Akrich. It is also not authority for any general proposition that it is unlawful to demand a relation’s presence in a member state before he exercises his right of free movement.

4 From a survey of the authorities, LJ Buxton drew the following propositions:

The rights of free movement for Union citizens created by Directive 2004/38 are generally limited to rights to move within the community

The reason for providing free movement rights to relations of Union citizens is to ensure that they are not deterred from exercising their rights within the community.

Mrax and Commission v Spain may indicate that Article 2 family members (ie: spouse; partner; direct descendants who are under 21or dependants; and dependant direct relatives in the ascending line) can obtain access to the community by reason of their relationship alone.

5 Turning to the main issue of the appeals, namely, whether Regulation 8 (2) (a) has correctly transposed Article 3 (2) (a) of Directive 2004/38 by requiring prior residence of other family members in an EEA state in which the EEA national also resides, LJ Buxton says that the tight relationship between the rights of free movement by Union Citizens within the community and the requirement that other family members must be able to accompany or join them, in order not to deter the exercise of free movement rights, strongly suggests that the relationship should have existed in an EEA country, movement from which Union citizens derive the whole basis of their rights. Even if this construction is wrong, and “the country from which other family members have come” can be any country at all, the appellants in this case do not come anywhere to meeting the detailed requirements of article 3 (2) (a) for the following reasons:

They were not accompanying or joining the Union citizens. In fact, they were present in the UK in breach of immigration law for many years before the Union citizens arrived, and were seeking to use the arrival of the Union citizen relatives to legitimise their breach.

They were not dependants in Sri Lanka. Relying on the ECJ’s (European Court of Justice) decision in Jia, LJ Buxton says there was no indication that their essential needs there would not have been met without the money from the Union citizens.

They were not members of the household of the Union citizens as they were not living under the same roof and the same household headed by the Union citizens in Sri Lanka.

There was no current dependency or household membership, if any, in Sri Lanka, as this only lasted until 1992.

Following Singh and Akrich, the Union citizens in this case could not be said to be deterred from moving to the UK by the refusal to grant residence rights to the appellants, who had no rights or any physical presence with them in the EEA state from which they moved.

Comments:

The case leaves open the question of whether it is lawful for the Secretary of State (SSHD) to apply domestic immigration law to Article 2 family members (eg spouses) seeking leave to enter the UK from outside the European Union as family members of EEA nationals exercising Treaty rights in the UK. It also raises question on the correct interpretation of the concept of dependency under Directive 2004/38. LJ Buxton in this case relied on the case of Jia and interpreted the notion of dependency as one of necessity. This conflicts with the ECJ’s decision in Lebon (316/85 Lebon (1987) ECR 2811, para 21) where the court says that there is no need to determine the reasons for recourse.

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Tier 1 (Post Study Work)

NA & Others (2009) UKAIT 00025

Facts: The case involved the appeals of three appellants, each of whom had brought an appeal against a decision by UK Border Agency refusing to grant further leave to remain under the Tier 1 (Post Study Work) scheme. Their appeals all turned on the issue of whether each was able to meet the requirements of paragraph 245 Z the Immigration Rules that they had sufficient funds as specified in Appendix C to the Rules, entitled ‘ Maintenance funds’. In all three appeals the appellants had met all other requirements of the Immigration rules, those concerned with Attributes (Appendix A) and ‘English Language’ (Appendix B)

Summary of Judgement:

The new- style Immigration Rules governing Tier 1 (Post Study work) contain maintenance (Funds) requirement in mandatory terms that admit of no discretion and make no allowance for sickness or other mitigating circumstances.

The effect of paragraph 245Z (e), read together with Appendix C of the Immigration Rules and closely related parts of the Policy Guidance dealing with Tier 1 (Post Study) Work, is that to qualify, an (in country) applicant must show he or she held £800 or over for each and every day of the period of three months immediately preceding the date of application.

The requisite amount of £800 or over can be shown in the form of a personal or joint account and may be shown in the form of personal savings held in overseas accounts.

Because the relevant provisions require applicants to show that they had the requisite amount of £800 during a three-month period of time immediately before their application, it is not possible to succeed on appeal by proving they had the requisite funds for a period of time (wholly or partly) subsequent to the date of application. However, until the law changes, it remains possible for appellants to satisfy the requirements of paragraph 245 Z (e) by providing on appeal evidence in specified form showing that they had £800 or over in personal savings for the period of three months immediately prior to the date of application.

Paragraph 34 A of the Immigration Rules is mandatory and in the case of an appellant who has not submitted the specified documents in an initial application, it may be that the application does not meet all the requirements of the Immigration Rules. However, the UKBA does have a discretion to waive the requirements of paragraph 34A.

Whilst it is possible for a student in the course of his or her studies (and part- time working, if applicable) to have developed over time ties with the community that amount to significant elements of a private life within the meaning of Article 8of the European Convention on Human Rights, they are persons who have come to the UK for a limited purpose and with no expectation of being able to stay except by meeting the requirements of the Immigration Rules. A refusal under the Tier 1 (Post Study) scheme is therefore unlikely to breach Article 8.

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Links

The Law Society of England and Wales www.lawsociety.org.uk

The Solicitors Regulation Authority
www.sra.org.uk/home.page

ILPA
www.ilpa.org.uk

UK Border Agency http://ukba.homeoffice.gov.uk

UK Visa www.ukvisas.gov.uk/en

AIT (Asylum and Immigration Tribunal)
www.ait.gov.uk

‘Life in the UK’ www.lifeintheuktest.gov.uk