Judicial Review
Citizenship Act
As if all these rule changes on immigration and work permits were not enough, the government has introduced the Borders, Immigration and Citizenship Act 2009 that would make it even harder for everyone to apply for permanent settlement. The new law which has now received Royal Assent will do away completely with the provision for “indefinite leave to remain” replacing it with a provision for “probationary citizenship” that could run for up to eight years before one can apply for full citizenship. The Borders, Immigration and Citizenship Act 2009 will be implemented in stages. There will be limited transitional measures that will be put in place in relation to applications for ILR.
Needless to say, until migrants obtain full citizenship, they will continue to live in uncertainty about their future. They are not allowed to change jobs and have no access to welfare and other benefits enjoyed by all British citizens. We can lobby and hope to win more favourable transitional measures prior to the full implementation of the new Citizenship Law in 2011. However, we can also go to court to highlight the unfairness and unreasonableness of the UK Border Agency in refusing settlement applications even now.
We take our cue from the HSMP Forum Ltd which successfully challenged the Home Office policy of increasing the requirement for indefinite leave to remain from four to five years of continued stay and applying this retrospectively to all migrants, including those who arrived before April 2006 when the new policy took effect. In April 2009, the HMSP Forum won their legal challenge.
The High Court ruled that the Home Office acted unlawfully in applying the change in requirement for settlement from four to five years of continued stay to persons already admitted to the Highly Skilled Migrants Scheme which ran from 2002 to 2006. Justice Sir George Newman observed: “I find that the terms of the scheme, properly interpreted in context and read with the guidance and the rules, contain a clear representation… that once a migrant had embarked on the scheme he would enjoy the benefits of the scheme according to the terms prevailing at the date he joined.”
The judgment concluded: “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.”
The Home Office has no choice but to implement this High court ruling. However, it has decided to apply this only to those admitted under the HSMP scheme before April 2006. Immigrant Welfare Ltd, another group of migrants from various communities, is therefore planning to launch a judicial review of its own, this time challenging the Home Office policy of discriminating against non-HSMP migrants in implementing the judicial ruling on the HSMP case. Kanlungan supports this initiative by Immigrant Welfare Ltd even as it remains committed towards pursuing the judicial review focusing specifically on senior care workers. The premise of Kanlungan’s legal action is to highlight the unfairness and unreasonableness of the decision of the UK Border Agency in refusing settlement applications because of gaps in the visas of senior carers.