Client trying to sue me re HSMP Judicial Review

[The Station Agent]

I'm just seeking some help from moderators etc. I am an immigration advisor mainly dealing with PBS cases. Historically I have only once assisted a client with HSMP. This was in June 2006 (so only paragraph 17 of Appendix S applies). They were approved and got the entry clearance September 2006, valid to 2008. Before renewal could take place the UKBA amended the criteria so my client no longer qualified for an extension under HSMP in 2008. He had to switch into a 3 year work permit (Aug 2008-2011). As of June 2011 I have had no contact with the client. In 2011 he applied for ILR via another company and we gave that company our case papers.

Reading between the lines it seems his initial ILR application was rejected (I don't know why - possibly because he was one month short of 5 years) and he had to appeal. He is now trying to sue me for loss of earnings while he appealed. The lawyer he's using reckons that in 2009 I missed an opportunity to secure his LTR based on HSMP Forum Judicial Review. I don't think this applies because he managed to change into another category that led to settlement (due to my help).

Anyone got experience of this? I am, naturally, worried. Thanks in advance.

[Amber]

I assume you have liability insurance, you should contact your provider who can best advise you regarding a negligence claim.

[The Station Agent]

Will do - just wondering whether this was an entirely spurious claim, because the client had got HSMP after April 2006, therefore to apply for ILR he would have to do 5 years in a category leading to settlement before he could fall back on anything in the Judicial Review.

[Obie]

As the law stood then, he did not qualify.

It was following a successful Judicial Review that it was found that applying those changes retrospectively was unlawful.

You could not be held responsible for this. If anyone should be responsible it should be UKBA.

It is similar to the Alvi Supreme court judgement. A client could not hold an adviser liable for the existence of an unlawful policy being applied to their case.

In any event he had a section 3C rights, it could not be held against you or UKBA, that their was a causal link between the alleged incompetence on you part, and his loss of earning.

It seems like an entirely spurious claim.

[The Station Agent]

Thanks Obie.

I don't even think the JR is relevant in this case. As he was only an HSMP holder after the April 2006 deadline I believe he could only use his HSMP time towards an ILR claim of 5 years in a category that leads to settlement.

He switched into work permits from 2008-2011 (before the JR was announced).

Appendix S (relevant) says that anyone granted HSMP after April 2006 has to meet these criteria to qualify for ILR:

17. The requirements for Indefinite Leave to Remain for a person qualifying for consideration under this appendix are that they:
a. have spent a continuous period of five years lawfully in the United Kingdom, of which the most recent period must have been spent with leave as a highly skilled migrant, and the remainder must be made up of leave as a highly skilled migrant, leave as a work permit holder (under paragraphs 128 to 133 of the Immigration Rules), (irrelevant bit redacted).

As at 2008 he had done 2 years on HSMP and nothing else that qualified for ILR.

In 2011 we signposted him to a competent firm that dealt with ILR applications. They considered he may have breached his permit conditions and he went to another law firm. This second firm seemingly handled an ILR app which seems to have gone wrong and required an appeal, which was eventually successful. He is claiming against me for loss of earnings, presumably while his passport was stuck at the UKBA during the appeal.

[The Station Agent]

Alvi case at Supreme Court does not seem particularly relevant to my case - does anyone know of a case where an advisor was successfully sued for advising a course of action which led to ILR, rather than another course of action which would have also led to ILR?

[Obie]

I was not suggesting Alvi is applicable to you case, i was simply using it as an analogy.

Prior to Alvi, people were refused on the basis of policy, which was not laid before parliament as part of rules, as provided for in section 3(2) of the 1971 act. This was struck out as illegal by the Supreme court.

In HSMP, the government sought to apply rules retrospectively to people who had a legitimate expectation before coming to the UK.

In both cases people were refused. Some legal adviser assumed it was the law of the land, and did not take the matter further.

The simple point i was seeking to make was that, a legal advise or solicitor cannot be held responsible in those circumstances.

I was not doing an individual assessment of your dispute with this former client, just making a generalise observation.

[The Station Agent]

OK, thanks, Obie.