UK courts have already twice found changes to immigration rules unlawful when applied to people who entered a programme expecting a shorter route to ILR. The proposed policy would extend the standard period for ILR from 5 to 10 years, but for now this is a policy announcement: the immigration rules still state 5 years. Challenging the new approach in court is only possible where there is a legitimate expectation, reliance on it, and provable circumstances.
What has changed at the rules level
The earned settlement system, announced on 2 November 2026 by Home Secretary Suella Braverman, proposes raising the standard ILR period from 5 to 10 years. However, the published immigration rules — specifically paragraph SW 21.1 of Appendix Skilled Worker — still provide for 5 years. A policy announcement and an implemented rule are not the same thing.
The HSMP precedents of 2008 and 2009
In HSMP Forum Limited v Home Secretary (2008), the High Court examined changes affecting migrants who already lived in Britain and had entered under a specific scheme expecting to move toward settlement. The court found that applying tightened requirements to an existing group was unlawfully unfair. The key principle is legitimate expectation: if a public body makes a sufficiently clear statement, the law may require it to honour that statement.
In 2009, the government increased the ILR period from 4 to 5 years. The High Court ruled it unlawful to apply this period to migrants who had already entered the scheme. The similarity to the current proposal (from 5 to 10 years) is obvious, but there are differences too: the earlier cases concerned specific promises tied to the HSMP scheme. The Skilled Worker route has different rules, documents, and circumstances, so the precedents are strong but do not guarantee an outcome.
ILR period: current rule and proposal
Comparison of periods based on the material
| Current period | Proposed period | |
|---|---|---|
| Standard ILR period (Skilled Worker) | 5 years | 10 years |
| Status of the proposal | in force | announced |
| Time limit to file a judicial review claim | 3 months | 3 months |
What a successful claim must prove
First — legitimate expectation: what official statements the government made at the time of entry, what the published rules, documents and guidance said, and whether these statements were clear enough to create a binding expectation.
Second — reliance on the expectation. In the case described, the person arrived in 2022, left stable employment abroad, relocated with their family, paid substantial visa costs, and planned to obtain ILR in 2027, but now faces another 5 years. Such circumstances can serve as important evidence, but hardship alone does not make a decision unlawful.
Third — transitional protection. The government has already proposed a 5-year transitional arrangement for some existing care workers, in recognition of their contribution to the care sector crisis. The question is whether treating other Skilled Worker employees differently is sufficiently justified. A difference in treatment is not in itself unlawful, but the authority must act within the law.
Fourth — fairness and proportionality. A court may examine whether a protected expectation was breached without sufficient justification, and whether relevant circumstances were properly considered.
Why ‘retroactivity’ alone does not decide the case
The House of Lords in Odidola v Home Secretary (2009) confirmed that applications for immigration status are generally considered under the rules in force at the time of the decision, unless the relevant provisions state otherwise. So claiming that a new rule is retroactive does not automatically invalidate it. Odidola determines which rules apply, while HSMP addresses whether applying changed rules breaches a legitimate expectation. These are different legal questions.
In addition, Pathan v Home Secretary (2020) showed the Supreme Court’s willingness to intervene in immigration decisions where procedural fairness has been breached. It concerned the route preceding Skilled Worker and the revocation of a sponsor licence, not the ILR period, but it illustrates the court’s general approach.
Families with children and how to frame the court case
Where children are affected, section 55 of the Borders, Citizenship and Immigration Act 2009 may be relevant, as well as considerations under Article 8 of the European Convention on Human Rights. However, these protections do not automatically restore the 5-year ILR period.
The usual mechanism is judicial review. A lawyer first determines whether a specific policy, rule, or decision can be challenged, and whether there are reasonable grounds. Challenging a specific policy may be possible before an individual ILR refusal, but the exact wording and implementation of the new rules will be decisive. Normally a formal letter is sent to the Home Office under the pre-action protocol. If the matter is not resolved, an application for permission for judicial review may follow.
Under Civil Procedure Rule 54.5, a claim must be filed promptly and, generally, within 3 months of the grounds arising. One should not assume that the 3 months are always available, or that sending a letter stops the clock. If successful, the court may declare the policy unlawful, quash a decision, or require reconsideration. The court itself does not normally grant ILR.
What to keep now
It makes sense to keep original visa documents, official government guidance, employment records, tax confirmations, and evidence of important life decisions. Record the date you entered under the Skilled Worker route and the date by which you expected to obtain ILR. Legal advice is needed before taking any action that could affect immigration status.
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