AA and Others (Highly skilled migrants: legitimate expectation)
| Jurisdiction | England & Wales |
| Judge | SENIOR IMMIGRATION JUDGE |
| Judgment Date | 22 October 2007 |
| Neutral Citation | [2008] UKAIT 3 |
| Court | Asylum and Immigration Tribunal |
| Date | 22 October 2007 |
[2008] UKAIT 3
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Miss E Arfon-Jones DL, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Grubb
For the Appellants: Mr J Gillespie instructed by Turpin … Miller Solicitors (for AA, RM and MF)
Ms M Phelan instructed by Solicitors Active (for MC) and Christine Lee Solicitors (for KS)
For the Respondent: Mr S Kovats instructed by Treasury Solicitors
AA and Others (Highly skilled migrants: legitimate expectation) Pakistan
(1) The Tribunal has jurisdiction to consider a challenge to an immigration decision on the basis of the public law concept of legitimate expectation which falls within the ground of appeal that the decision is “otherwise not in accordance with the law” in s.84(1)(e) of the 2002 Act and, if made out, the appeal must be allowed under s.86(3)(a); (2) the changes to the HSMP in effect from 7 November 2006 apply to all decisions in respect of extensions of leave made on or after that date; (3) in such cases, the Home Office Guidance on the HSMP of 31 October 2003 does not create a legitimate expectation that those who entered the UK prior to 7 November 2006 will have their extensions of stay decided on the basis of any previous Immigration Rules and criteria relating to the HSMP.
These appeals were listed together because they raise a common issue concerning the effect of changes introduced to the Highly Skilled Migrant Programme (“HSMP”) from 7 November 2006 as a result of amendments made to the Immigration Rules (HC 1702 amending Statement of Changes in Immigration Rules, HC 395). HC 1702 introduced changes which, in particular, impose potentially more onerous criteria for an individual already in the UK who seeks an extension of leave under the HSMP.
The first appellant (AA) is a citizen of Pakistan who worked in Pakistan in the banking and investment sector prior to coming to the UK. In March 2005 he made an application under the HSMP which was approved by Work Permits UK on 1 September 2005. In November 2005, AA applied for entry clearance which, on 1 January 2006, was granted valid for 12 months. AA gave up his job in Pakistan, sold his assets in Pakistan and travelled to the UK. On 8 April 2006, AA arrived in the UK and was granted leave to enter until 1 January 2007. On 19 June 2006 AA's son, the third appellant (MF) arrived in the UK and was granted leave to enter in line with his father. On 9 October 2006, AA's wife, the second appellant (RM) arrived in the UK and was granted leave to enter in line with her husband. Whilst in the UK, AA undertook work in a bank between April and October before leaving to set himself up in self-employment. On 15 December 2006, AA applied for an extension of his leave under the HSMP. His wife and son applied for an extension of their leave in line with his application. AA's application, together with those of his wife and son, were refused on 13 February 2007 as AA had failed to satisfy the new points requirement of the revised scheme introduced from 7 November 2006, in particular because he had not earned sufficient income in the previous year in the UK. Also, the respondent decided that AA could not take advantage of some transitional arrangements for the self-employed as he had failed to provide satisfactory evidence of trading 4 months prior to the application.
Immigration Judge Kelly in a determination promulgated on 16 April 2007 dismissed AA's appeal (and that of his wife and son which fell to be decided in line with his). The judge doubted whether he had jurisdiction to entertain an appeal based upon a legitimate expectation argument. Nevertheless, he went on to reject AA's argument that he had a legitimate expectation that his application would be decided under the HSMP scheme in force prior to the changes effected from 7 November 2006. He concluded that the only expectation was that AA's application would be decided on the basis of the Immigration Rules in force at the date of decision: on that it was accepted he failed. In any event, AA had failed to show that he was “lawfully economically active” — a requirement under the version of para 135D of HC 395 in force prior to 7 November 2006. The judge also decided that AA's removal would not breach his right to respect for his private and family life under Art 8 of the ECHR.
The fourth appellant (MC) is a citizen of Pakistan who worked for the Pakistan government prior to coming to the UK most recently in the Ministry of Women Development, Social Welfare and Special Education with responsibility for the Convention on the Rights of the Child Agenda in Pakistan. He has a Masters Degree in Sociology from the University of the Punjab. On 30 November 2004 he made an application under the HSMP which was approved by Work Permits UK on 16 September 2005. In December 2005, he applied for and was granted entry clearance under the HSMP scheme valid for 12 months. MC resigned his job in Pakistan and travelled to the UK. On 10 April 2006, MC arrived in the UK and was granted leave to enter until 14 December 2006. He left his wife and 4 children in Pakistan with the expectation that they would join him later. Whilst in the UK, he worked from June 2006. On 17 November 2006, MC applied for an extension of his leave under the HSMP. On 15 March 2007, the respondent refused to extend MC's leave because he had failed to establish a total of 75 points under the new HSMP requirements, in particular because he had not earned sufficient income the previous year. Also, the respondent did not accept that MC's Masters degree satisfied the English language requirement in para 135D(iii) of HC 395 in force from 7 November 2006.
Immigration Judge P D Birkby in a determination promulgated on 11 June 2007 dismissed MC's appeal against the respondent's decision. He rejected MC's argument that he had a legitimate expectation to remain in the UK or to have his application for an extension of leave to be dealt with other than under the current Immigration Rules. He also concluded that MC's return to Pakistan would not breach his right to respect for his private life under Art 8 of the ECHR.
The fifth appellant (KS), who is a citizen of India, worked as a principal lecturer in information technology at Gujarat University prior to coming to the UK. He has a Masters Degree in Computer Applications obtained in India. In August 2004, KS made an application under the HSMP which was approved by Work Permits UK on 14 September 2005. In December 2005 he applied for and was granted entry clearance under the HSMP valid for 12 months. However, due to the illness of his mother whom he looked after with his wife he did not travel immediately. KS resigned his job and sold the family farm in India and eventually travelled to the UK. On 4 August 2006, he arrived in the UK and was granted leave to enter until 19 December 2006. On arrival, he took up work with a bank. On 24 November 2006, KS applied for an extension of his leave under the HSMP. This was refused by the respondent on 19 December 2006 because, due the short period of his employment in the UK, he was unable to meet the 75 point criteria in para 135D in force from 7 November 2006. He was advised to make an application as a work permit holder but his employer was unwilling to consider his employment on that basis.
Immigration Judge McMahon in a determination promulgated on 5 June 2007 allowed KS's appeal. The judge accepted the argument that on the basis of what was said in Home Office guidance the appellant had a substantive legitimate expectation that his application would be considered under the HSMP criteria prior to HC 1702 coming into effect on 7 November 2006. The respondent's decision was, as a result, not in accordance with the law and the respondent should again consider KS's application accordingly. The judge also concluded that the refusal of leave was a disproportionate interference with KS's right to respect for his private life and hence breached Art 8 of the ECHR.
Following orders for reconsideration on the application of the appellants (in the appeals of AA and MC) and of the Secretary of State (in the appeal of KS), the appeals now come before us.
The HSMP was first introduced on 28 January 2002 but has been subject to change on a number of occasions. The essential feature of the HSMP is described in the Home Office guidance, Highly Skilled Migrant Programme: Guidance for Applicants, 7 November 2006 (at p. 2):
“to allow individuals with exceptional skills to seek entry or stay to work in the UK without having a prior offer of employment, or to take up self-employment opportunities.”
Initially the HSMP operated outside the Immigration Rules and its terms were wholly contained within the Home Office guidance documents (see Highly Skilled Migrant Programme (HSMP), January 2002 and Highly Skilled Migrant Programme (HSMP) — Revised Programme effective from 28 th January 2003). On 1 April 2003, the HSMP was incorporated into the Rules as paras 135A-135H of HC 395 (HC 395 as amended by HC 538), although the points system and criteria operated under the Scheme remained in the published guidance. A revised programme was introduced on 31 October 2003 together with a separate (but similar in effect) scheme for applicants under 28 years of age (see Highly Skilled Migrant Programme (HSMP) — Revised Programme effective from 31 October 2003 (hereafter “the October 2003 Guidance”)). Further changes were made to the rules governing the Scheme in October 2004 (Cm 6333 and Cm 1112), March 2005 (HC 346) and April 2006 (HC 1016) before the final changes, and ones affecting these...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2009-03-09, [2009] UKAIT 12 (IH (s.72, 'Particularly Serious Crime'))
...which we consider to be contemplated by the 2002 Act. It is properly the domain of judicial review. It is true that in AA and others [2008] UKAIT 00003 the Tribunal took the view that the ground of appeal in s.84(1)(e) permitted challenges based upon public law principles, for example of fa......
-
IH (s.72; ‘Particularly Serious Crime’)
...which we consider to be contemplated by the 2002 Act. It is properly the domain of judicial review. It is true that in AA and others [2008] UKAIT 00003 the Tribunal took the view that the ground of appeal in s.84(1)(e) permitted challenges based upon public law principles, for example of fa......
-
Ramesh Sapkota and another v Secretary of State for The Home Department
...LJ's judgment. 72 See [21] and [27]. 73 Mirza at [25]. 74AA and others (Highly skilled migrants:legitimate expectation) Pakistan v SSHD [2008] UKAIT 00003; Thakur (PBS decision —common law fairness) Bangladesh v SSHD [2011] UKUT 00151 (IAC); Patel (revocation of sponsor licence-fairness) I......
-
TC03780: Karen Rotberg
...that reliance can be placed on cases in the Asylum and Immigration Tribunal, such as AA v Secretary of State for the Home Department [2008] UKAIT 3, in which public law arguments, including legitimate expectation, were held to be within the tribunal's jurisdiction under a statutory ground o......