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UK court upholds NRI's appeal on visa extension

A Tribunal upheld an appeal of George Joseph from Kerala in India against refusal of extension of his Highly Skilled Migrant Programme (HSMP) visa.

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LONDON: A British Tribunal has upheld an appeal of a NRI against refusal of extension of his HSMP visa by the government, holding out a ray of hope for several others facing similar deportation from the UK after retrospective changes in the immigration law of November 2006.

In a landmark judgement, a city Tribunal upheld an appeal of George Joseph from Kerala in India against refusal of extension of his Highly Skilled Migrant Programme (HSMP) visa.

Judge Digney of Hatton Cross Tribunal Court allowed the appeal of Joseph, a Ph.d in Chemistry, on the grounds of Human Rights Article 8 (Interference with private and family life).

"Dr George Joseph has a strong legitimate expectation of further HSMP visa extension according to the rules he came under and he changed his position to his detriment as a result of what he was told and that there is no overriding public interest that demands the treatment to which he was subjected to," the Judge said in his ruling.

The decision has brought hope to thousands of HSMP holders who are in similar situation as that of Joseph and are awaiting a Judicial Review which can provide relief them.

The government's decision to implement the changes it brought about in the immigration law of November 2006 with retrospective effect affected thousands of Indians and other non-European highly skilled migrants who came to Britain based on the initial promises made by the authorities.

Amit Kapadia, Director of the HSMP Forum, an organisation campaigning against the retrospective changes implemented by the government in November 2006, said, "The ruling made by the Judge clearly indicates that what the UK Home Office is doing is unfair and unreasonable."

Joseph came to the UK on HSMP visa with his family (wife and daughters) after selling his property in India and leaving a well settled senior-level career in Oman where he has been staying since 1992 because of certain promises made to him by the British government.

"I and my family are very happy about the tribunal court outcome and we can breath a sigh of relief with the court's decision and our relatives back home in India are also happy for us," Joseph said after the verdict on Friday.

"We have undergone an extremely stressful period of being forced out from a country where in we have been asked to sign declarations to make it our main home and for which we have made innumerable sacrifices to make it our main home," he said.

Joseph filed the appeal after the Home Office refused extension of his HSMP visa on March 30, 2007.

During the hearing, Joseph handed over the old guidance notes, which was in vogue between 2002 and Nov 7, 2006, which among other things stated: "That you are willing and able to make the United Kingdom your main home. We will ask you to provide a written undertaking to that effect."

The guidance notes also stated: "It is important to note that once you have entered under the programme you are in a category that has an avenue to settlement. Those who have already entered under HSMP will be allowed to stay and apply for settlement after four years qualifying residence regardless of these revisions to HSMP."

To qualify to stay after the first 12 months, the note said, "You will need to show that you are lawfully economically active or, if you are not, that you have taken all reasonable steps to become lawfully economically active..."

The UK tribunal court judge expressed surprise that the Home Office revised its rules with retrospective effect.

"The judge stated that Dr George Joseph has a strong legitimate expectation of further HSMP visa extension according to the rules he came under and he changed his position to his detriment as a result of what he was told and that there is no overriding public interest that demands the treatment to which he was subject," said Kapadia, who has been actively campaigning against the retrospective changes implemented by the government.

Chris Randall, Chairperson of Immigration Law Practitioners Association and lawyer of HSMP Forum, who is looking after the Judicial Review of the Forum said: "It shows the advantages for some of using the appeal structure, especially where they have family here."

"This was a human rights appeal where it was argued that the legitimate expectation of Highly Skilled Migrants already in the system about extensions to their stay were breached, which offended the requirement that any decision interfering with family and private life must be in accordance with the law," said Randall.

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