Alliance instructs Kingsley Napley LLP and Sonali Naik KC ahead of potential judicial review pending Government’s policy decision
As reported by The National yesterday, the new organisation Skill Migrants Alliance is preparing a legal challenge against plans by the Government to retrospectively extend the five-year qualifying period for Indefinite Leave to Remain (ILR) under its new "earned settlement" policy.
Image credit: UK GovernmentSkill Migrants Alliance launched its website this week, describing itself as a community-led initiative representing skilled migrants and their families across the UK. The group says it advocates on behalf of approximately 1.6 million workers, businesses and individuals, including those employed in sectors such as healthcare, infrastructure and technology.
The alliance's stated aim is to challenge proposed retrospective changes to immigration policy that could extend the settlement route for skilled migrants from five years to ten or potentially fifteen years. It argues that migrants who entered the UK under existing rules did so with a legitimate expectation of settlement after five years, and that extending the qualifying period retrospectively would be unfair and create significant financial and personal uncertainty for affected individuals and families.
The organisation says it has instructed immigration and public law specialists at Kingsley Napley LLP, alongside leading barrister Sonali Naik KC of Garden Court Chambers, to prepare a formal legal opinion, which will inform a pre-action letter to the Home Office.
"By securing the best legal counsel today, we are sending a clear message to the Home Office: we are prepared, we are professional, and we are united," the organisation stated.
In a January update posted on CrowdJustice, Skill Migrants Alliance said that an initial fundraising target of £25,000 to meet early legal costs has been reached through a crowdfunding campaign. The alliance said this funding would cover the first phase of legal advice and preparation, with further action dependent on the Government's final policy decision and any formal changes to the Immigration Rules.
It said it was prepared to seek judicial review and that its objective was to ensure the Government honours what it describes as the legitimate expectation of a five-year route to settlement for affected migrants.
The legal preparations follow the closure last week of a Home Office consultation on the proposed "earned settlement" reforms, which sought views on extending settlement qualification periods and introducing additional requirements for permanent residence. Ministers have said that transitional arrangements and final details of the earned settlement policy will be informed by responses to the consultation.
In her November policy statement, A Fairer Pathway to Settlement, Home Secretary Shabana Mahmood said the Government did intend the changes to apply to migrants already in the UK who had not yet obtained settlement. She stated: "Crucially ... we propose to apply these changes to everyone in the country today who has not already received indefinite leave to remain. This would mean that those who are due to reach settlement in the coming months and years would be subject to the new requirements for earned settlement, as soon as our immigration rules have changed."
The Home Secretary backed this position in evidence to the House of Commons Home Affairs Committee earlier this month, defending the Government's approach in light of recent migration levels. She told the Committee: "I think what is fair is that a Government and a country should be able to respond to the circumstances that they face." She noted that settlement applications are assessed under the rules in force at the time of application, rather than those in place when a person first entered the UK. "The basis on which an application for indefinite leave to remain is assessed is based on the rules at the time that you apply," she said. "That has always been the case… it has been tested in court and been upheld in case law since 2009."
Skill Migrants Alliance said it will determine its next steps once the Government publishes its consultation response and makes an official policy announcement. It said the second phase of its legal action, including issuing a pre-action protocol letter, would follow the Government's finalisation of any changes to the Immigration Rules. The alliance said its objective is to ensure that existing migrants’ settlement pathways are treated in accordance with what it describes as the legitimate expectation of a five-year route in place when they entered the UK.