Retrospectively changing Indefinite Leave to Remain rules for those currently on the 5 year route to a 10 year route is unlawful and unfair

This week has been mostly about reassuring clients that the Immigration White Paper is not yet law and we will have to wait and see what the proposed new rules will be. This has been particularly daunting for clients who may be applying for indefinite leave to remain in 2026 and are being told that the rug will be pulled from under their feet and they will have to wait until 2031. 

It seems from media responses from Government Ministers this week that memories are short on this settled issue. 

In 2006, the then UK government introduced changes to the rules for a now-defunct visa programme called the Highly Skilled Migrant Programme (HSMP). This affected the criteria for extending the visa and obtaining indefinite leave to remain. These changes were applied retrospectively to individuals already in the UK under the HSMP scheme, which led to significant concerns and challenges for those affected.

In the case of HSMP Forum Ltd, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 664 (Admin) (08 April 2008), the High Court ruled that:

• Retrospective Application: Applying the new rules retrospectively to individuals who had already been granted leave was unfair and unlawful.
• Legitimate Expectation: The court recognised that migrants had a legitimate expectation that the rules under which they were initially granted leave would continue to apply to them.
• Outcome: The High Court ruled in favour of the HSMP Forum, preventing the government from applying the new rules retrospectively to those already in the UK under the scheme. This decision ensured that affected individuals could continue to apply for indefinite leave to remain under the original terms of their entry.

The case was significant because it upheld the principle of legitimate expectation and fairness in immigration policy, ensuring that changes to immigration rules should not disadvantage those who had already made life-changing decisions based on the existing framework. It highlighted the importance of transparency and consistency in the application of immigration rules.

Should the current Government decide to go ahead with the proposed retrospective application of the 10-year route to those currently on the 5-year route, I strongly suspect there will be a U-turn once the Courts apply this 2008 judgment. 

UK immigration law is constantly changing. It is important to take timely legal advice to reduce the risk of friction at the border and to ensure compliance with the UK immigration rules. If you have immigration questions, please contact Paul McCarthy.