PaperPusher wrote:fahmad wrote: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.
The HSMP judicial review DOES NOT MEAN THE GOVERNMENT HAS TO PUT IN TRANSITIONAL ARRANGEMENTS. Please read it in conjunction with the 1971 Immigration Act, and the rest. You also need to look up "legitimate expectation" The case was won because they had a  legitimate expectation that changes in the rules would not affect them. Why? well because they were told that changes in the rules would not affect current HSMP people.
No such promise has been made by the UK Border Agency to students, as you yourself concede.
I think I am going to agree to a certain extent because indeed I did NOT SAY THEY HAVE TO PUT IN TRANSITIONAL ARRANGEMENTS although what I did say the courts through precedents did favour transitional arrangements. While they don't have to, it would be stupid not to because then they face legal challenges that heavily might favour one.
Immigration Act, 1971 does not detail these clauses as an Act of Parliament. The Act only governs the system in general, not detailing the PBS. I read it but in case I missed out, please do point out :
http://www.britishcitizen.info/IA1971.pdf. In governing this PSW visa category, the Immigration Act 1971 should be read with the Immigration Rules where the PBS is outlined clearly (
http://www.ukba.homeoffice.gov.uk/polic ... es/part6a/).
Section 245V of the Immigration Rules clearly outlined the purpose of this route is to "encourage international graduates who have studied in the UK to stay on and do skilled or highly skilled work."
The word
encourage here can be used in a court of law to argue that this visa category was presented to international students as an option upon entry to the UK under a qualifying UK student visa/Tier 4(General). This word 'encourage' also inclines towards to the positivity of the government / the UK in PROMOTING international students to take up this visa upon graduation of a qualifying course of study in the UK.
Further to these sections, it is explicitly outlined in the Immigration Rules that entry clearence is not disputed as long as satisfying sections 245W and 245X. No refusal unless the application does not meet these requirements.
On these grounds, whilst the government can do whatever they want (as they have been doing anyway i.e. temporary cap before parliament and then got themselves in hot soup upon judicial review), as affected parties we can (and have the legal right) to challenge this decision in the courts.
As students ALREADY on student visas, we are given this option and 'encouraged' in the Immigration Rules. Once the visa category has been abolished, section 245V,W,X,Y,Z,A will appear as DELETED. Once this has been done, then, new students who apply will no longer see the word ENCOURAGED or any sentence, and therefore they are in no way encouraged to spend 2 years of their post-study in the UK and in all sanity they would not make such plans either.
In all respect, any legal proceedings will definitely look at the loopholes to win a judgement - that's a clear fact in any case. Innocent until proven guilty not the other way around, not under English laws at least.
The government can definitely do anything they want, of course. That's why you have some country leaders serving war criminal charges because during their time in government, they 'can do whatever they want' but through a fair challenge in courts then we can really see if it is lawful or otherwise - based on moral and legal rights judgements of the independent judiciary.
On the other hand, they have a right to appeal too if they are not happy, right? We are not denying them of that right, either.
I rest my case. =)
