Post
by hsmphopeful » Mon Apr 21, 2008 8:03 pm
In HSMP Forum Ltd, R (on the application of) v Secretary of State for the
Home Department [2008] EWHC 664 (Admin), in particular paragraphs 52 and
54-57 (reproduced below) the High Court held:
52. In my judgment the correct answer to the "dispositive" question
requires a contextual analysis of the purpose and terms of the HSMP up to
November 2006, not a textual analysis of its parts interpreted in isolation
from the other parts of the scheme. My analysis, which is to a large extent
laid out in the preceding paragraphs of this judgment, is as follows:
(1) The scheme represented a change in the policy of controlling
immigration.
(2) The policy was designed to target a particular group of migrants
and to encourage them to come to the UK to assist the UK economy.
(3) The scheme was not composed of severable parts but of
interlocking provisions. Once a migrant had joined the scheme he was
entitled to enjoy the benefits of the scheme according to its terms. He was
obliged to establish a migrational intent to make the UK his main home.
(4) Participation in the scheme was designed to provide a path to
settlement and once a migrant had embarked on the scheme it was intended
that he should carry the expectation of attaining settlement. That was the
purpose of the scheme.
54. Had it been in the defendant's contemplation that the criteria
at the extension stages would need to change, even though a migrant had
embarked on the scheme, it seems inconceivable that notice would not have
been given of this possibility at the time notice was given to prospective
applicants that the "criteria and documentation" would change. The
defendant's original misconceived reliance upon the limited reservation as
applying to changing the rules for extension and settlement, was abandoned
between the summary grounds of defence and the hearing. I agree with Mr
Fordham that the express reservation, and the absence of any equivalent,
contribute to the overall representation as to what was- and what was not -
capable of being changed.
55. But the guidance went further. The January 2002 guidance stated
that even if the programme was suspended:
"those already in the United Kingdom, as Skilled Migrants, will
continue to benefit from the programme's provisions".
The later guidance stated in answer to the question "What if the
scheme changes?" and "I have already applied successfully under the HSMP.
How does the revised HSMP affect me?"
"A. Not at all. It is important to note that once you have entered
under the programme you are in a category that has an avenue to settlement.
Those who have already entered under the HSMP will be allowed to stay and
apply for settlement after 4 years' qualifying residence regardless of
revisions to HSMP".
56. It can be said (indeed it was emphasised) that the revisions did
not touch the extension and settlement criteria and that the statement
cannot be read as applying to such revisions. I am not so much influenced by
the reference to "revisions" as I am by the "important ... note" in general
terms: "... once you have entered ... you are in a category that has an
avenue to settlement". This seems to me to accurately describe the character
and intended manner of operation of the scheme.
57. I find that the terms of the scheme, properly interpreted in
context and read with the guidance and the rules, contain a clear
representation, made by the defendant, that once a migrant had embarked on
the scheme he would enjoy the benefits of the scheme according to the terms
prevailing at the date he joined.
THEREFORE the judgment applies to the 4 year ILR issue as well.
!