AA and Others (Highly skilled migrants: legitimate expectation) Pakistan

Factual and Procedural Background

These appeals concern the impact of amendments made on 7 November 2006 to the Highly Skilled Migrant Programme ("HSMP") under the Immigration Rules, specifically HC 1702 which introduced more stringent criteria for extensions of leave under the HSMP. The appellants are individuals who entered the UK under the HSMP prior to these changes and subsequently sought extensions of their leave to remain, which were refused on the basis that they did not meet the new requirements.

The first appellant ("AA") is a Pakistani national who initially worked in banking in Pakistan before obtaining HSMP entry clearance and relocating to the UK with his family in 2006. His application for extension was refused due to failure to meet the new points-based criteria and insufficient evidence of self-employment. His wife and son were co-appellants in the appeal.

The fourth appellant ("MC"), also a Pakistani national, previously employed by the Pakistan government, arrived in the UK in 2006 after HSMP approval. His extension application was refused for failure to meet the points threshold and the new English language requirement.

The fifth appellant ("KS"), an Indian national and former university lecturer, arrived in the UK in 2006 under HSMP after a delay due to family illness. His extension application was refused for failure to meet the new points criteria.

Immigration judges dismissed the appeals of AA, RM, MF, and MC, rejecting claims of legitimate expectation and finding no breach of Article 8 of the European Convention on Human Rights ("ECHR"). The appeal of KS was allowed by an immigration judge on grounds of legitimate expectation and breach of Article 8, but this decision was subject to reconsideration and is now before the Tribunal along with the other appeals.

Legal Issues Presented

1. Whether the appellants have a substantive legitimate expectation that their applications for extension of leave under the HSMP should be considered under the pre-7 November 2006 rules rather than the revised rules introduced by HC 1702.
2. Whether the Tribunal has jurisdiction to entertain appeals based on public law grounds such as legitimate expectation.
3. Whether the refusal of extensions of leave breaches the appellants' rights under Article 8 of the ECHR, concerning respect for private and family life.
4. Whether the changes to the HSMP rules and the application of the new rules to the appellants are lawful and proportionate in light of the public interest.

Arguments of the Parties

Appellants' Arguments

• The appellants contend that they had a legitimate expectation, based on Home Office guidance (notably the October 2003 Guidance), that their extension applications would be assessed under the HSMP rules in force at the time they were granted entry clearance and came to the UK.
• They argue that they took all reasonable steps to become lawfully economically active under the previous version of the HSMP and would have met the criteria then, but fail under the new, more onerous points-based system.
• The appellants claim that refusal of leave under the new rules breaches their rights under Article 8 of the ECHR, given their private and family life interests in the UK.
• They assert that the Home Office guidance created a substantive legitimate expectation not to be subject to retrospective application of the changed rules.

Respondent's Arguments

• The respondent submits that the Tribunal lacks jurisdiction to consider public law grounds such as legitimate expectation in immigration appeals, arguing these are matters for judicial review in the Administrative Court.
• Even if jurisdiction exists, the only legitimate expectation is that applications will be decided according to the Immigration Rules in force at the date of decision, not at the date of entry clearance or arrival.
• The respondent contends that the Home Office guidance did not constitute a clear and unambiguous promise to apply the old rules indefinitely, especially given explicit statements that the scheme could change and that applications would be treated according to the rules at the time of submission.
• The changes to the HSMP were justified by public interest considerations, aiming to ensure migrants make a greater economic contribution to the UK, and thus any legitimate expectation is overridden by these overriding policy interests.
• Refusals of extensions were proportionate and lawful under Article 8, balancing individual interests against the public interest in immigration control and economic well-being.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the jurisdictional issue, rejecting the respondent's argument that the Tribunal lacks jurisdiction to consider public law grounds such as legitimate expectation. It found that the statutory grounds of appeal under s.84(1)(e) of the Nationality, Immigration and Asylum Act 2002 encompass public law challenges, including legitimate expectation, supported by binding authority such as R v IAT ex parte Bakhtaur Singh and DS Abdi v SSHD.

Turning to the substantive legitimate expectation claim, the court examined the Home Office guidance documents, focusing on the October 2003 Guidance relied upon by the appellants. It found that while some passages suggested that applicants who had already entered under the HSMP could apply for settlement regardless of revisions, this was qualified by clear statements that the scheme could change and that applications would be treated according to the rules in force at the time of submission.

Applying an objective test of what a reasonable reader would understand, the court concluded that the guidance did not amount to a clear, unambiguous, and unqualified promise to apply the old rules indefinitely. Consequently, the appellants failed to establish a substantive legitimate expectation that their extension applications would be assessed under the pre-7 November 2006 rules.

The court further considered the public interest and fairness. It acknowledged the appellants' detriment in relocating to the UK relying on the guidance but emphasized the lawful authority of the government to amend immigration policy for the economic well-being of the country. Given the large number of migrants potentially affected and the policy rationale for the changes to better select economically contributive migrants, the court found that even if a legitimate expectation had existed, it would be overridden by the public interest.

Regarding Article 8 ECHR claims, the court applied established legal tests for interference with private and family life and proportionality. It found that the appellants' rights were engaged to varying degrees but that the refusals of extension were lawful, necessary, and proportionate in light of immigration control objectives and economic considerations. The court upheld the decisions dismissing the appeals of AA, RM, MF, and MC on Article 8 grounds.

In the case of KS, the immigration judge had erred in law by accepting a legitimate expectation claim and misapplying proportionality under Article 8 by failing to balance the public interest adequately. The court substituted a decision dismissing KS's appeal on both grounds.

Holding and Implications

The court's final rulings are as follows:

• Dismissal of the appeals of AA, RM, MF, and MC, affirming the refusals to extend their leave under the HSMP.
• Dismissal of KS's appeal, substituting the prior decision allowing his appeal.

The immediate effect is that all appellants' applications for extension of leave under the HSMP are refused according to the rules in force after 7 November 2006. The court confirmed that the Tribunal has jurisdiction to consider public law grounds such as legitimate expectation in immigration appeals but found that the appellants failed to establish such an expectation. The court also confirmed that changes to immigration policy, even those adversely affecting migrants who had relied on previous guidance, may lawfully override legitimate expectations in the public interest.

No new precedent was created beyond confirmation of existing principles on jurisdiction, legitimate expectation, and Article 8 proportionality in the context of immigration appeals.