As has been widely reported today, the government has been defeated in judicial review challenge to the changes it made in 2006 to its highly-skilled migrant programme. Here’s the judgment.
It’s a classic legitimate expectation case, about the unfairness of the way a policy change to an application process affects people in terms of timing. The government had announced a shiny new programme to attract highly-skilled migrants to the UK by offering a path to permanent settlement in the UK. Once you got in, satisfying a points scheme, you had to pass a subsequent test to qualify for settlement. In the documentation sent to potential applicants, there were statements bearing the clear implication that those rules would not be changed following successful initial entry to the UK. But the government did then subsequently change those rules. No one disputes it could properly do so for new applicants. But they also tightened up the criteria for extension even for those who’d already moved to the UK based on the original terms of the offer.
The government is apparently considering an appeal, but I wouldn’t give them much chance. I think the judge’s analysis of the original prospectus for the programme clearly shows the government offered a forward framework for settlement; it is obviously unfair, given the reliance people have placed on that prospectus – uprooting themselves, buying houses, having children brought up here and educated in British schools and so on – now to pull the rug from under them, especially given the implied earlier reassurances that precisely this would never happen; and finally, even on the government’s own case there is no macroeconomic or other serious public interest to outweigh the clear unfairness to some individuals. The judge’s reasoning seems to me unimpeachable based on the existing case law on legitimate expectations – I’d tell the immigration minister Liam Byrne to save his money.
A frustrating thing here is that the Government was some time ago warned that the changes would be ruled unlawful, by among others the Joint Committee on Human Rights.
But the Government went ahead anyway, which – to my jaded eye – seems par for the course.
I wonder if, like in Youssef v Home Office, whether it was a case of “at least it would be the courts, not the government, who would be responsible” for all these unwanted foreigners.