First of all, apologies for a long post. I have been kept in touch with developments by a poster to this board and I thought it was about time I contributed something.
I have been an employer who has pushed staff through the work permit scheme. Also I have had friends who have done battle with the work permit scheme, including obtaining ILR and citizenship. My old office was some 200 metres from Lunar House in Croydon and a while back I had a friend who was a case worker there. So I'm aware of some of the horrors involved. My background is in marketing, but I have a basic legal training. I have also lived and worked in Asia - so have experience of the way other countries process "aliens".
So let's be clear. I think its jolly decent of you people who generally get educated at your own (or your own country's) expense and then in a mad moment decide to come to the UK so you can pay tax to keep the lazy Brits idle. In the case of London, quite why you'd want to spend more than a quid for a journey in a bus when in the 30C heat all they can do to keep it cool is paint the roof white, I don't know.
Anyway, I don't like the change that has been made because it is unfair. It is also commercially stupid for "UK plc" to tinker around like this. There is a real global market for skills and this won't help the UK as an importer of such skills.
Now for the reality as I see it.
The rule change - really retrospective?
Many of the posts refer to the retrospective nature of the change. This is a wobbly argument. I'm sure everybody here is convinced it is - but people here are not the ones to be convinced. The government constantly changes rules and regulations which might impact on the decisions people made a few years back. The budget is an obvious example - changes to taxation rules means that company investment decisions, personal tax planning (eg through trusts) with hindsight might have been done differently. The government always reserves the right to change policy.
I think it would only be truly a retrospective change if applicants were told that the rule would be 4 years for them when they applied - and now that it is changed to 5. The reality is that at the time of joining the HSMP the 4 year rule was only applicable to people that had achieved 4 years. It was not a rule that was applicable to people joining the scheme at the time they joined it.
I believe it is "unfair" because no doubt the government were aware that the 4 year rule was a motivator for people to join the scheme. I think a transitional arrangement would seem fairer.
Political campaign
For the most part, British people think there are too many foreigners hanging around (except when a Polish plumber fixes their tap) and its British people that vote for politicians.
I'm sure some politicians support the campaign out of real conviction but they are also masters of saying what people want to hear.
Despite the march, EDMs etc., this has not reached a critical mass of public concern and I don't think it will. Unless some "sob" story of some nice looking foreign doctor - much loved by his community - and about to be kicked out by the brutal Home Office can be found and hits the headlines I think the political campaign by itself is probably doomed.
Legal issues
I have read some of the posts including part of a dialogue with Stephen Kong. I would always defer to the qualified lawyers here, but this is my view as a non-lawyer with some legal knowledge.
This government has a habit of being caught out by the courts. As mentioned previously, there is a process called "Judicial Review" where courts can be asked to intervene in the decisions of public bodies/government departments. Recent examples include the failure of local health authorities to prescribe certain cancer drugs and the Belmarsh prisoners' case (suspected terrorists).
It is politically awkward to lose a case. In my opinion a credible legal threat is more likely to make the government change its mind than normal campaigning.
Judicial Review must be started quickly - 3 months is the usual time limit though a specialist lawyer would have to advise exactly when this runs from - it is not so simple.
There are various grounds for challenge - a simple example being that the public body has acted outside its power or illegally. This could be because of a breach of Human Rights. Now for the "Human Rights" thing. I don't feel this is the strongest case. "Human Rights" are often banded around - this is the way I look at it.
Human Rights Angle
The Human Rights Act 1998 incorporates the European Convention of Human Rights into UK law. The ECHR consists of articles - you must "choose your article" clearly. Each article is defined and there is a body of case law (ie cases that have been decided before) which make it clearer which claims are likely to succeed. I can only see 2 that are related to this situation that might be applicable.
Article 7 offers protection against "retrospective" actions - but this is only in the context of making criminal an act that was not criminal at the time the act was performed.
Article 8 is the "right to respect for private and family life". I think within the human rights thing, this offers more hope. It is a "qualified" right - not an absolute one. This means that in certain circumstances and with good reason the government can interfere with this right. You would have to show that not only are your rights under this Article are being breached but that this was without good reason - ie the government was acting disproportionately in pursuit of its legitimate aims. Such aims are defined in the Article. I feel the case under Article 8 is also weak - the government does have aims that seem to fall inside the terms of the Article and people have a remedy - you can simply apply for a year's extension. I realise this means staying with a job for another year - but its quite a long way from saying that the government is infringing human rights by "breaking up families" and that its action is disproportionate....
Other grounds for JR
There are other grounds for JR. Irrationality, unreasonableness, unfairness are all woolly concepts that come into this. Maybe Stephen Kong is considering JR on one of these grounds on the basis of the "retrospective" contention. If he is reading this, it would be good to have his comments.
There seems to be an "emerging doctrine" of "Legitimate Expectation". It means you can have grounds for JR if a public body breaks a promise of some sort. This CAN be an implied promise. But it must come from the body you're complaining about. If for example an immigration lawyer advised you that on getting your 4 year permit you'd be sure of ILR without further hassle then you'd have an "expectation", perhaps even an "understandable expectation" but it wouldn't be "legitimate". If the Home Office's website promised this as part of its HSMP material then I think it would be "legitimate" - its somewhat akin to a contract. It does rather come down to the facts - what representations were made to people by the government when they joined the HSMP.
Of course sometimes the promises aren't so clear - policies are established which cause people to make decisions only to find that the policy has changed. The question is to what extent it can be implied by a policy that the policy itself or another policy won't be changed. Can a policy drive an expectation? Can people have a legitimate expectation that a policy change won't cause them to lose a benefit they were expecting as a result of decisions they made whilst the old policy was in force? If a lawyer is reading this, I believe interesting cases include R v Secretary of State for the Home Department ex parte Asif Khan and R v Ministry of Agriculture, Fisheries and Foods ex parte Hamble Fisheries (Offshore) Ltd. Amongst other points, these cases address issues of whether a legitimate expectation arises when someone relies (to their detriment) on a government policy which is then changed. There is a suggestion that unless there is an overriding public interest an enforceable legitimate expection can arise. A lawyer specialising in this area would know all the relevent cases and be able to advise the latest thinking.
In summary, as I've already stated I think the pure "retrospective" argument is flawed in principle. Legally I feel its in trouble also - it seems to be outside of Article 7 of the ECHR. In any case there is little legal reason why parliament cannot pass retrospective legislation - eg as in the case of
http://en.wikipedia.org/wiki/Burmah_Oil ... d_Advocate and the War Damages Act 1965. Also the War Crimes Act 1991 is a more recent example of retrospective-type legislation. BUT I think there could be a good case when argued on the grounds of a failure to meet "legitimate expectation" which though related is subtly different.
Be aware, though, its a fine line. For constitutional reasons Courts are reluctant to become involved in any discussion of the merits of the policy itself. This is a "separation of powers" issue mentioned by an earlier poster.
Legal campaign
If people in this group are serious about a legal action, then
I think you should raise enough money in the first place to get a legal opinion from a specialist lawyer experienced in judicial review matters. This is not necessarily the same specialism as immigration law - remember its the lawfulness of the regulations that is being challenged - not a decision under those rules. Alternatively a non-specialist lawyer would no doubt consult with an appropriately experienced barrister. Based on his answer and an assessment of the likelihood of a positive outcome you can decide whether its worth financing the JR itself.
I have only been able to identify a few pointers - maybe the Human Rights grounds are stronger than I suppose - or I've missed other avenues.
I suspect the government didn't decide against transitional arrangements on principle - probably they were just too careless to care. And now it would be seen as a "U-turn" to change their minds. It might not be necessary to go all the way with a JR - a credible legal threat might be enough to push them into deciding that the "most comfortable" route would be to relent.
Conclusion
I think as a group you should get some proper legal advice. You don't have to drop the political campaigning - but reading through the posts I don't think the legal case has been properly evaluated. I've gone as far as I can with the resources I have (and I'm working remotely from Taiwan).
Good luck!
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