R (BAPIO Action Ltd) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE STANLEY BURNTON,Mr Justice Stanley Burnton |
| Judgment Date | 09 February 2007 |
| Docket Number | Case No: CO/4699/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 February 2007 |
[2007] EWHC 199 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Stanley Burnton
Case No: CO/4699/2006
Rabinder Singh QC and Janet Kentridge (instructed by Linder Myers Solicitors ) for the Claimants
Jonathan Moffett (instructed by the Treasury Solicitor and the Solicitor to the Department of Health ) for the Defendants
Hearing dates: 7 and 8 December 2006
THE HONOURABLE MR JUSTICE STANLEY BURNTON
Introduction
1. On 7 March 2006, Lord Warner, the Health Minister, announced changes to the Immigration Rules applying to foreign (by which I mean, in the present context, non UK or other EEA) postgraduate doctors and dentists. The new Rules were introduced before Parliament on 10 March and came into force on 3 April 2006. The object of the changes was to make it far more difficult for those doctors and dentists to obtain leave to enter or to remain in this country for the purposes of postgraduate training.
2. Shortly afterwards, the Department of Health (“DH”) gave advice to NHS employers which made it more difficult than previously for doctors on the Highly Skilled Migrant Programme (“HSMP”) to obtain appointments in the NHS.
3. Most of the doctors and dentists affected by the changes in the Immigration Rules and the DH advice are from the Indian sub-continent. For convenience, I shall refer to them as Indian, irrespective of whether their origin is India, or Pakistan, Bangladesh or Sri Lanka. The First Claimant was established by the British Association of Physicians of Indian Origin (BAPIO), which represents the interests of such doctors in this country. It is unnecessary to distinguish between the First Claimant and BAPIO in this judgment, and I shall refer to both as BAPIO. The Second Claimant was an overseas-qualified doctor who came to England in order to complete his post-graduate training; he had not obtained a post-graduate post and his ability to do so had been prejudiced by the governmental decisions referred to above.
4. In these proceedings, the Claimants seek judicial review of the decision to introduce those new Immigration Rules and of the DH guidance. They contend that the decision to change the Immigration Rules was unlawful by reason of the failure of the Government to consult them before making that decision; that the advice given by the DH is unlawful on the ground that it misrepresents the Immigration Rules or is an illegitimate attempt to vary them; and that in making its decision to change the Immigration Rules the Home Office failed to comply with the requirements of section 71 of the Race Relations Act 1976.
5. Some of the complaints made by the Claimants in their skeleton argument relate to the substance of the changes to the Immigration Rules and of the advice given by the DH. It is said that the changes to the previous position are unfair and discriminatory. In view of the publicity that these proceedings have received, it is important to emphasise that the legal grounds of the Claimants’ challenge to the changes in the Immigration Rules are procedural only: they relate to the failure of the Government to consult BAPIO before deciding to make the changes. It is of course implicit in the challenge that BAPIO objects to the substance of the changes, and thinks that if it had been consulted it would have persuaded the Government of their unfairness; but they have not suggested that that alleged substantive unfairness gives rise to a ground for judicial review.
6. Tragically, on 19 January 2006, while judgment was awaited, and before my conclusions were known, Dr Yousaf died, having taken his own life. I do not know whether his death was associated with his difficult situation, which I summarise later in this judgment. It appears that he had no relatives in this country. I can only express my condolences to his relatives in India. His death does not affect the First Claimant's claims.
The background
(a) Medical training
7. As is well known, those who wish to practise as doctors are required to graduate from a medical school, and then to progress to postgraduate training, which involves working as a doctor. Until the so-called Calman reforms of the 1990s, there were four postgraduate training “grades”: pre-registration house officer (PRHO), senior house officer (SHO), registrar and senior registrar. A PRHO was not entitled to be fully registered with the GMC: graduates of UK medical schools were given provisional registration so that they could acquire the experience of medical practice required to obtain full registration. Doctors who completed their post-graduate training could, in due course, proceed to work as General Practitioners, or as consultants in their chosen specialty.
8. In 1993 a working group under the chairmanship of the then Chief Medical Officer Sir Kenneth Calman produced what is commonly called the Calman Report, entitled “Hospital Doctors: Training for the Future”, which led to fundamental changes in post-graduate medical training. It recommended the introduction of a Certificate of Completion of Specialist Training and the replacement of the then registrar and senior registrar grades. Subsequently, in 1996 and 1997, a new unified training grade was introduced, the Specialist Registrar (“SpR”) grade.
9. More recently, a two-year Foundation Programme has been introduced, to replace the old PRHO and the first year of the SHO grades. In addition, from August 2007 there will be Specialty Training Programmes, replacing the second and third years of the old SHO grade and the whole of the SpR grade. As a result, as from August 2007 a trainee doctor will ordinarily spend years 1 and 2 after medical school on the Foundation Programme and then, if he wishes to be a consultant, the following 5 to 10 years on a Specialty Training Programme, the length of which will depend on the specialty involved.
10. Training as a GP takes a minimum of 3 years after completion of PRHO training or the Foundation Programme. The 3 years normally consist of 2 years in a hospital and a year in a GP training practice as a GP registrar.
(b) The immigration requirements imposed on IMGs
11. Until recently, there has been a shortage of British-trained doctors in the NHS. That shortage was alleviated by the large numbers of foreign, and mainly Indian, doctors who came to this country to train or to complete their training or simply to work. Foreign medical graduates are referred to as International Medical Graduates, or IMGs. (The evidence and skeleton arguments in this case are plagued by acronyms, and regrettably I see no alternative but to adopt them). The presence of IMGs in this country has been of enormous benefit to the NHS and its patients. For their part, the IMGs who came here to train or to work benefited from their medical experience in this country, and could apply their skills in their country of origin on their return; although of course some settled in this country permanently. If they did so, however, their education and skills were lost to their country of origin, where the need for qualified doctors was probably greater than here.
12. The GMC is the regulator of doctors practising in the UK. IMGs wishing to train here by working as a doctor must pass the GMC's Professional and Linguistic Assessment Board (“PLAB”) tests. The object of these tests is to ensure that IMGs have the necessary medical and linguistic abilities for medical practice here. The test is in two parts. Part 1 can be taken either in this country or overseas, and costs £135. Part 2 must be taken in this country, and costs £430.
13. Until 1985, there were few restrictions on IMGs who wished to come to the UK to work or to train as doctors. If they did come here, and stayed for 4 years, they could acquire settled status, i.e. be given indefinite leave to remain. The position was changed with effect from 1 April 1985, when the Immigration Rules were amended to introduce what came to be called Permit-Free Training (PFT). IMGs who satisfied the requirements of PFT and were appropriately qualified could enter and remain and take up a training post in this country without a work permit. They were required to have the intention to leave this country at the end of their training, with a maximum period of stay of 4 years; and their time in the UK on PFT did not count towards the acquisition of settled status. PFT was not available for doctors who wished to work rather than to train, or who wished to come to this country in order to settle permanently. These changes in the Immigration Rules were announced on the day they were laid before Parliament, on 26 March 1985, 4 days before they came into effect.
14. At some time before June 1994, the Immigration Rules were amended to exclude IMG PRHOs (i.e., doctors in their first year of postgraduate medical training) who had not graduated from a UK medical school. Doctors who were able to work as a SHO were not affected by this change, which was confirmed in the consolidation of the Immigration Rules in May 1994. In addition, an aggregate limit of 12 months was placed on the leave to enter or extension of stay that might be granted to a doctor seeking to undertake postgraduate medical training as a PRHO.
15. In January 1994, the PFT scheme was modified by extra-statutory concession. There were concerns that doctors here under the PFT...
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