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he Guardian (London)
April 9, 2008 Wednesday
Skilled migrants win right to stay as judge says rule change unlawful: Government move was 'unfair and discriminatory': Immigration minister to consider appeal
Thousands of highly skilled migrants who faced being thrown out of the country are to be allowed to stay after a high court judge ruled yesterday that government immigration rule changes were unlawful and "an abuse of power".
The judge, Sir George Newman, upheld a legal challenge brought by workers over retrospective rule changes that they claimed amounted to sustained unfair and discriminatory treatment.
Tens of thousands of doctors, engineers and financiers have been encouraged to come with their families to work and stay in Britain under the Home Office's highly skilled migrant programme since it was introduced in 2002. The programme allowed migrants with exceptional skills to live and work in Britain on a long-term basis without a prior offer of a job. Those who came could apply to stay indefinitely after four years.
But Home Office ministers suspended the scheme in November 2006 amid claims that some "highly-skilled migrants" were not doing highly skilled work but were working in jobs such as taxi drivers and "food services operatives".
New rules were imposed which only allowed those on the programme to extend their initial stay if they scored sufficient points based on their earnings in the UK, their age and educational qualifications, and an English language test.
The scheme is now being closed down as it is being replaced by "tier one" of the new comprehensive points-based immigration system.
The high court judge said in his ruling that the terms of the original scheme should have been honoured and that there was no good reason why those already on the scheme should not enjoy the benefits as originally offered them.
"Good administration and straightforward dealing with the public require it. Not to restrain the impact of the changes would, in my judgment, give rise to conspicuous unfairness and an abuse of power," said Newman.
He also turned down a Home Office request to expedite a hearing of the case in the court of appeal.
The judge said the case had highlighted an "ethnic penalty" that migrant skilled workers faced in the workplace when competing for skilled jobs. He said he had "real concern" over the absence of any appraisal of the unfairness and hardship involved.
Amit Kapadia, of the HSMP Forum, which brought the high court legal action, said the ruling followed a high-profile campaign which had included petitions, meetings with the immigration minister and a highly critical report from parliament's human rights committee which described the changes as unfair and unlawful.
"The immigration department was obsessed with defending their decision and were not open to any reasoning. We had no other recourse but to approach the judiciary and we are glad that our trust in the democratic system has been finally restored."
Kapadia said 90% of the 49,000 who had come under the scheme had faced the threat of being thrown out of the country when their applications to extend their stay were turned down.
But the Home Office claimed only 16,000 principal applicants had come to Britain under the scheme before November 2006.
A spokesman said that so far 7,000 applications from highly-skilled migrants to extend their stay had been considered, with 650 turned down. He said there were 9,000 applications outstanding, but they anticipated a similar rejection rate, with a further 720 likely to be asked to leave the country .
The immigration minister, Liam Byrne, said he was considering an appeal: "This is a very straightforward case, which affects just 1,300 highly skilled migrants. Did we give migrants a big enough warning that the rules could get tougher while they were here? We said yes, others said no.
"That's why it was right for a judge to take a look at this case, and I will now decide whether to appeal against his ruling."
A Home Office spokesman confirmed that no action would be taken against those refused permission to stay while an appeal was outstanding.
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