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

A public authority which has made a clear representation about the terms of an integrated policy scheme must honour it unless departure is legally required or objectively proportionate to a legitimate public aim. Where an immigration scheme creates an interlocking path to settlement, the qualifying period for settlement forms part of the substantive benefits promised to those who joined the scheme. A later increase in that period cannot lawfully be applied retrospectively to members who joined under the earlier terms unless sufficient justification is shown. The court’s review is not confined to a low-intensity standard merely because immigration and settlement involve matters of public policy where the affected group is specific and identifiable.

The claimant, an organisation supporting skilled migrants, challenged policy guidance adopted after the Secretary of State lost an earlier judicial review concerning retrospective changes to the Highly Skilled Migrant Programme. The earlier judgment, [2008] EWHC 664 (Admin), required the original terms of the scheme to be honoured for migrants already admitted before changes made in November 2006.

The present challenge concerned the separate increase, made on 3 April 2006, in the qualifying period for indefinite leave to remain from four to five years. The claimant argued that the Secretary of State’s policy unlawfully failed to preserve the four-year period for migrants who had joined the scheme before that date. The central issue was whether the earlier legitimate expectation principle applied to the qualifying period for settlement.

1. Effect of the earlier judgment. The earlier decision was not confined to extension criteria. Its ratio was that the HSMP was an integrated scheme containing interlocking provisions and providing a path to settlement. Migrants joining the scheme had a substantive legitimate expectation that they would enjoy its benefits according to the terms prevailing when they joined.
2. Qualifying period. The four-year period in Rule 135G(i) was a term or condition for obtaining settlement. There was no principled distinction between that period and other substantive criteria governing progression through the scheme. The representation concerning the scheme’s benefits therefore extended to the qualifying period.
3. Justification and intensity of review. Under Nadarajah and Abdi v Secretary of State for the Home Department [2005] EWCA Civ 1363, departure from a public promise requires legal justification or a proportionate response to a legitimate public aim. The affected migrants formed a specific and identifiable group, so the issue was not properly characterised as a macro-political decision requiring only minimal review. R v Secretary of State for Education and Employment ex parte Begbie [2000] 1 WLR 1115 supported that distinction.
4. Application. The aims relied upon by the Secretary of State, including greater attachment to the United Kingdom and consistency with relevant European provisions, did not justify imposing an additional year on migrants who had joined under the four-year scheme. The evidence showed substantial practical disadvantages. No sufficient public interest outweighed the unfairness or displaced the requirement of good administration. R(Ooi and Others) v Secretary of State for the Home Department [2007] EWHC 3221 (Admin) was distinguishable because it concerned different applicants and lacked the clear representation present here.
5. The Secretary of State would act unlawfully by applying a five-year qualifying period to HSMP members who joined before 3 April 2006. The policy guidance of 9 July 2008 was consequently unlawful. The court formed the provisional view that the claimant was entitled to relief and invited submissions on its form.

The judgment describes an earlier judicial review in which the High Court held that retrospective changes to the HSMP were unlawful: [2008] EWHC 664 (Admin). The Secretary of State did not appeal that decision. The present claim was determined at first instance in the Administrative Court.