Changes to the Highly Skilled Migrant Programme made in November 2006 held to be unlawful

In 2002 the Home Office, launched the Highly Skilled Migrant Programme (HSMP), a new initiative to allow individuals with exceptional skills and experience to come to the United Kingdom to seek and take up work without having a prior offer of employment. 

The programme was a way of allowing individuals to migrate to the United Kingdom. It aimed to provide an individual migration route for a highly skilled person who had the skills and experience required by the United Kingdom to compete in the global economy. The programme was (and continues to be) based on a points system. To make a successful application an individual needed to provide evidence that they scored 65 points or more in the areas of educational qualifications, previous work experience, past earnings, age, partner's achievements and contributions to a particular field. There was also in place a provision for GPs, who automatically qualified under the scheme.

On 7th November 2006, Liam Byrne, Minister for Immigration, Nationality and Citizenship announced a change in the Rules for the HSMP, applicable to all new applicants and those already in the UK under the HSMP. Applicants were to be assessed against new points criteria, points being awarded for academic qualifications; previous income; UK gained experience or qualifications and Age. The overall points score required for approval was increased from 65 to 75 points.  The Programme no longer awarded points for previous work experience, significant achievements and partner's skills. The GP Priority Provision category was also removed.

Significantly, applicants seeking to apply for an extension of their stay in this category now had to demonstrate that they met the new criteria. Applicants who did not meet the new criteria no longer qualified under the scheme.

The Highly Skilled Migrants Programme Forum Limited, a non profit organization set up to support and assist highly skilled migrants in the UK, brought a case against the Government, arguing that the new system was "grossly unfair" and "a clear case of breach of legitimate expectation".  The group argued that 90% of those who arrived before 2006, about 44,000 people would no longer qualify to remain in the UK and accused the Government of going back on a promise to let them stay after several years' work.

In a landmark judgement, the UK High Court has ruled that the Judicial Review application filed by the HSMP Forum Limited against unfair retrospective changes to the HSMP in November 2006 is successful. The High Court allowed the appeals made by Highly Skilled Migrants, stating that "the old scheme constituted an integrated and entire programme and that it was not open to the government to alter the terms and conditions upon which the pre-arranged stages were to be implemented."

Justice Sir George Newman, in his landmark judgement observed "In the circumstances, I am satisfied that the terms of the original scheme should be honoured and that there is no good reason why those already on the scheme shall not enjoy the benefits of it as originally offered to 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."