sushdmehta wrote:Please note that the court ruled that the cap was unlawful because of a technicality (parliamentary scrutiny not undertaken before introducing the cap) and not because the government cannot undertake such measures.
regards
This is true. The government can obviously take measures on any immigration issues, as at the end of the day it is the government that protects its sovereignity. However, if the JCWI did not act, the measure would have deemed lawful in the eyes of everyone i.e. they can do whatever they want, overnight. It is only because it was challenged in the courts, this decision has nullified the government's temporary cap; it did its action abruptly before going on proper channels i.e. through parliament etc.
Lesson learnt: We are not questioning what the government can or cannot do. It is the WAY how the government deals with taking such measure is the essence of it all. We think whilst the government can definitely abolish the PSW visa, we think the way they should do it i.e. providing transitional arrangements should be a fair-for-all deal.
We have to bear in mind, a judicial review on the HSMP programme also involved a similar nature of argument. The government definitely CAN prolong periods of eligibility for ILR from 4 to 5 years (or abolish the scheme, or do anything they want). However, the abrupt manner it took made the courts rule in favour of HSMP holders as it violated their rights; therefore those who were on the scheme prior to the announcement were allowed 4 years, whilst those after 5 years. (In no part of this arrangement there was a GUARANTEE those HSMP holders will get an ILR, they just qualify to apply for an ILR). The government made a retrospective move which put people in hardship hence why the courts ruled in favour.
Similarly, in the PSW case; Student visa holders who qualified were offered the PSW as an 'extension option' upon graduation from their qualifying programmes of study. This option was presented during the point of entry during their student visa. That means, a student would have, bearing that in mind, chose a post-study pathway that may have used this PSW option. No where did it say a student visa holder would GUARANTEE be given a PSW visa, but the option was nonetheless given. Therefore, following the HSMP precedent, we think those already in the UK under a student visa which qualifies for the PSW should have this option still rendered, whilst the government can of course take any measures on NEW applicants who are not given this option in the first instance.
The end verdict, if challenged in courts, come from the judicial system and not the executive branch of the system i.e the courts not the government. So, if ever the move is challenged in the courts, we should let the judiciary decide as any decision made by anyone besides them during the course of review would deem subjudice to the case.
