By Dipankar De Sarkar, IANS
London : Retrospective changes made to visas allowing highly skilled migrants to live and work in Britain are “conspicuously unfair” and constitute an abuse of power by the government, a British court was told.
“The conspicuous unfairness leaps from the page,” Michael Fordham, counsel for the Highly Skilled Migrants Programme (HSMP) Forum, told the high court Wednesday.
He accused the government of “moving the goalposts” and described HSMP visa changes as “unlawful, unreasonable and unfair by a considerable margin”.
The HSMP Forum says some 44,000 of its members will be affected by the British government’s insistence that those who are already in Britain on HSMP visas have to requalify using a Points Based System.
According to the new system, highly skilled migrants have to show that they have been earning at least 40,000 pounds and have the necessary academic qualification to be allowed to stay on in Britain.
But the Forum says 44,000 of its members have found it difficult to find jobs paying high salaries because of race discrimination in employment – a view that is backed by the Commission for Racial Equality, Britain’s apex race relations body.
It also argues that making these measures retrospective breaches the human rights of HSMP visa holders because it uproots their families by sending them back just when they had settled in Britain.
“The goalposts have been moved for those previously admitted. If they do not have a particular qualification or level of earnings they are required to leave,” Fordham argued.
He said individuals found themselves at a disadvantage when applying for high-end jobs for reasons of “race and ethnicity”.
Yet, he said, the families who would be affected are those “that are not a drain on the state – you’re not asking the state to fund anything”.
Judge Sir George Newman, at one point, asked counsel for the Home Office why it wasn’t possible for the government to allow the majority of skilled migrants to continue working in Britain, instead of seeking to “change the label”.
A large number of Indians packing Court 6 at the Royal Courts of Justice nodded vigorously in agreement.
Newman’s query came after government lawyer Robert Jay said that those who would be affected by the retrospective application of the new rules could switch to work permits, under which an employer has to support an applicant’s claim for a visa.
But HSMP Forum President Amit Kapadia later described the suggestion as “akin to someone being given admission for a Masters degree being told they would get a diploma instead.
“People wouldn’t have left well-paying jobs, and made the sacrifices they did to come to Britain on work permits,” he said after the hearing.
At another point, Judge Newman shot a hypothetical question to Jay: “(If) you came (to Britain) as a research scientist and are now working at Tesco (a supermarket chain), can you be sent back?”
The forum is arguing that the new rules and their retrospective enforcement are also a violation of “legitimate expectations” – when the migrants were granted HSMP visas in 2002 they were encouraged to settle down in Britain.
The Home Office later defended the changes, saying analysis had showed the previous test to be “not sufficiently rigorous to select those migrants who were making the greatest economic contribution to the UK” and that some who had qualified for the HSMP “were simply not doing highly skilled work”.
A Home Office spokeswoman said the changes were part of the government’s commitment to “managing the numbers of foreign workers entering the UK in the national interest”.
The forum’s Kapadia said: “We are fighting against a powerful and influential opponent – the Secretary of State for Home. We just hope that justice will be done.”