HSMP Forum Ltd, R (on the application of) v Secretary of State for the Home Department

A public authority may alter an immigration scheme for future applicants, but a change may be unlawful where the scheme, properly understood in context, contains a clear representation that existing participants will receive its benefits under the terms prevailing when they joined. The court must assess the scheme as an integrated programme, including its stated route to extension and settlement, rather than isolating individual provisions. A legitimate expectation may be defeated by an overriding public interest, but the justification must be sufficient to outweigh the unfairness caused. Where the public interest is slight and the change causes substantial disruption and hardship, applying the new criteria to existing participants may constitute conspicuous unfairness and an abuse of power.

HSMP Forum Ltd, an incorporated body representing highly skilled migrants, sought judicial review of changes to the Highly Skilled Migrant Programme introduced in November 2006. The changes altered the criteria for further leave to remain and settlement and applied them to migrants admitted under the earlier scheme. The claim alleged unfairness, including legitimate expectation and abuse of power, unreasonableness, and unlawfulness, including failure to comply with the Race Relations Act 1976.

The central issue was whether the original scheme gave existing migrants a legitimate expectation that its extension and settlement arrangements would continue to apply to them, subject to compliance with the original conditions.

1. Claim succeeded. The Secretary of State’s discretion to revise the immigration scheme was not itself challenged. The issue was whether the revised criteria could lawfully be applied to migrants who had already joined the earlier scheme.

2. The scheme had to be interpreted contextually and as an integrated programme. It was designed to attract a particular class of migrants, required them to make the United Kingdom their main home, and provided a staged route from entry through further leave to settlement. The guidance stated that those already admitted would continue to benefit from the programme and had an avenue to settlement.

3. Those terms amounted to a clear representation that migrants who joined the scheme would enjoy its benefits according to the terms prevailing when they joined. The representation did not guarantee extension or settlement regardless of compliance with the conditions. It protected the applicable conditions and criteria from being altered retrospectively during the migrant’s participation in the scheme.

4. The court applied the legitimate-expectation analysis identified in R (Bibi) v Newham LBC [2002] 1 WLR 237. The public interest relied on by the Secretary of State did not outweigh the unfairness. The number affected was small, the original scheme had broadly achieved its stated economic purpose, and transfer to the Work Permit scheme was materially less advantageous.

5. The inadequate consideration of hardship, the special commitments made by migrants, and the implications of the revised scheme for ethnic-minority migrants contributed to the conclusion that applying the changes to existing participants was irrational and an abuse of power. It was unnecessary to decide separately whether the duty under section 71 of the Race Relations Act 1976 had been breached, although the race equality assessment disclosed shortcomings.

6. The application for judicial review succeeded. The court was to hear counsel on the appropriate form of relief.