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Following the government’s publication of their Restoring control over the immigration system: white paper (the Paper) earlier this month, we consider the potential for one of the Paper’s more contentious proposals to be deemed unlawful, should it be implemented on a retrospective basis.
To our surprise and dismay, the Paper proposes that the continuous residence requirement for settlement applications would increase from five to ten years. Based on commentary from government ministers in the media, the increased continuous residence requirement is to apply to visa holders that are already living in the UK. Quite understandably, this proposal has panicked and frustrated those who had envisaged applying for settlement by 2026, but are now being told that they may not be eligible until 2031. It doesn’t seem fair, does it?! Is it lawful?
HSMP Forum Ltd v Secretary of State 2008[1]
In 2006, the government sought to introduce significant changes to the Highly Skilled Migrant Programme (HSMP), a route used by overseas workers prior to the inception of the UK’s points-based immigration system.
Amid fears that the HSMP was being ‘abused’, the government sought to introduce numerous changes, including an increase to the continuous residence requirement from four to five years. In its ruling, the High Court found that:
- The terms of the original HSMP should have been honoured, and that there was no good reason why those already on the route should not enjoy the benefits as originally offered to them. In summary, applying the new rules retrospectively was found to be unfair and unlawful.
- The principle of ‘legitimate expectation’ – the High Court was clear in its ruling on the “abuse of power involved in frustrating the migrants’ path to final settlement in the UK when [they] had already embarked on the journey“. It further recognised the “conspicuous unfairness” in migrants severing links with their home country on the promise of future entitlement within the UK.
The High Court found in favour of HSMP Forum Ltd, demonstrating the requirement for the government to operate in a balanced and equitable manner when making amendments to immigration laws.
Does this mean that the government cannot increase the continuous residence requirement for those visa holders already living in the UK? Not necessarily. The government has unfettered discretionary power to make retrospective changes to the Immigration Rules. Whether such changes are fair and lawful is a matter for the courts to decide. So, the government, could well dictate that the changes are applied retrospectively. This would then need to be challenged through the courts. However, pending the court’s decision, UK Visas and Immigration would be assessing settlement applications based on the government’s new rules.
Immediate action required
Already, there has been uproar from immigration advisors in response to the Paper and it is anticipated that any attempt to impose the rule changes retrospectively will be legally challenged. It is also worth highlighting that the Paper is not yet law, so there is scope for the government to change tact here and stipulate that the new rules will not be applied retrospectively.
However, with the government’s anti-immigration rhetoric loud and clear and countless other unknowns set out in the Paper, such as the retrospective application of the new enhanced English language and minimum salary requirements, we strongly recommend taking steps to protect your immigration status where possible. For those visa holders who have or will soon have the five years needed for (some) settlement applications, that means applying for settlement as soon as possible.
If you would like to discuss this in more detail, please do get in touch with Nicole Hambleton or Lynsey Blyth.
[1] HSMP Forum Ltd, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 664 (Admin) (08 April 2008)
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