R (BAPIO Action Ltd) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Maurice Kay,Lord Justice Rimer |
| Judgment Date | 09 November 2007 |
| Neutral Citation | [2007] EWCA Civ 1139 |
| Docket Number | Case No: C4/2007/0480 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 November 2007 |
Lord Justice Sedley
Lord Justice Maurice Kay and
Lord Justice Rimer
Case No: C4/2007/0480
CO/4699/2006
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
MR JUSTICE STANLEY BURNTON
Mr R Singh QC and Ms J Kentridge (instructed by Messrs Linden Myers) for the Appellant
Ms E Laing and Mr J Moffett (instructed by the Treasury Solicitor and the Solicitor to the Department of Health) for the Respondent
Hearing date: Tuesday 30 October 2007
Judgement
The issues
This appeal, for which Stanley Burnton J, who tried it at first instance, gave permission, concerns the lawfulness of two government measures: the alteration without consultation by the Home Secretary of the Immigration Rules so as to abolish permit-free training (PFT) for doctors who lack a right of abode in the United Kingdom; and advice given by the Department of Health to NHS employers that doctors on the Highly Skilled Migrant Programme (HSMP) whose limited leave to remain was due to expire before the end date of any training post that was on offer should be offered the training post only if the resident market labour criterion was satisfied.
The case no longer directly concerns the third limb of the judicial review application, which Stanley Burnton J determined against the executive and which has not been the subject of any cross-appeal. This arose out of the failure of the Home Secretary to comply, otherwise than in retrospect, with the duty imposed on him by s.71 of the Race Relations Act 1976 to have due regard, in carrying out his functions, to the need to eliminate unlawful racial discrimination and to promote equality of opportunity. The judge declared that there had been a failure to comply with the duty but, in the light of the unchallenged race equality impact assessment which was subsequently made, declined to hold that the rule change was vitiated by the omission. This conclusion, which was essentially an exercise of the discretion to withhold relief, is not challenged.
Such a finding does not in any way diminish the importance of compliance with s.71, not as rearguard action following a concluded decision but as an essential preliminary to any such decision. Inattention to it is both unlawful and bad government. It is the Home Office's good fortune that the eventual assessment did not force it to go back to the drawing board.
Stanley Burnton J ordered the applicants to pay all the costs of the Department of Health and two-thirds of those of the Home Office. The two departments had been jointly represented before him, but their costs were not coextensive. There is, however, a rule of practice, which in the event may call for attention, that an unsuccessful judicial review claimant will not ordinarily be ordered to pay two sets of costs.
The background
The judgment of Stanley Burnton J [2007] EWHC 199 (Admin) is clear and comprehensive in its account of the facts giving rise to the claim and should be referred to for all matters of detail. What follows is the barest summary.
The National Health Service both trains and employs a large number of doctors from the Indian subcontinent. The relationship is one of mutual benefit. Doctors from India, Pakistan, Sri Lanka and Bangladesh form part of a larger cohort of international medical graduates (IMGs), defined by their lack of a right of abode here. They therefore include doctors, both trainee and qualified, who have studied or qualified either here or abroad. The first claimant, whose name is an acronym for the British Association of Physicians of Indian Origin, represents the large proportion within the cohort of IMGs from the Indian subcontinent, a group particularly affected by the measures in issue. The second claimant was one of these doctors—was, because in the course of the proceedings below he took his own life. This court associates itself with the condolences conveyed to his family in the judgment of Stanley Burnton J.
PFT—permit-free training—was introduced in 1985 by an amendment to the Immigration Rules: if an entrant could satisfy certain threshold requirements, he or she could take up a training post without a work permit. In the years that followed the scheme was modified several times. In 1994 the waiver was limited, for first-year trainees, to those who had graduated from a UK medical school. In 1997 this stricture was relaxed. In 2002 trainee GPs were included in the scheme. In 2005 the use of extra-statutory concessions to permit trainees to enter with a view to taking the language test administered by the General Medical Council, the Professional and Linguistic Assessment Board (PLAB), was replaced by a rule-change which separated entry for PLAB tests from leave to remain and stipulated that the IMG must leave the UK if he or she failed the test. The first part of the test can be taken overseas, but the second part must be taken here. Later the same year the Rules were further changed to take account of the new Foundation Programme for doctors in their first two years of postgraduate training. IMGs seeking entry for training other than on the Foundation Programme were not barred but now needed academic endorsement.
The rule-changes
It was against this background that on 7 March 2006 the Health Minister, Lord Warner, announced fresh changes to the Immigration Rules affecting postgraduate doctors and dentists. The instrument containing them was laid before Parliament on 13 March by the Home Secretary and came into force on 3 April 2006.
Their effect was that PFT was to be limited to graduates of UK medical schools. It was also to be restricted to an initial period of 26 months on a Foundation Programme with a potential extension to a maximum of 3 years. The major consequence was that PFT ceased to be open to graduates of foreign medical schools. They could of course continue to train and work here, but only if they could secure entry on the terms applicable to those entering in order to take paid employment.
To those already undergoing training, however, the new regime was not to apply. Existing PFT entrants could remain and continue their training; and those at senior registrar or equivalent level could move into work permit employment without having to meet the resident labour market criterion, from which employers of IMGs in these classes were also exempted. The latter pair of exemptions was time-limited.
But for IMGs who were lawfully in the UK on visitor visas and, though unemployed, had passed the PLAB test and were seeking traineeships, no transitional provision was made. Their interests and aspirations were cut off by the rule change. The second claimant was in this position. The first claimant also contends that IMGs who had the benefit of PFT at the time of the change will now be required to obtain a work permit in order to continue their training here. They too, it is said, have therefore had a secure position undermined.
The guidance
It remained open to IMGs to enter the UK by the other paths allowed by the Immigration Rules, including the Highly Skilled Migrant Programme. Under the HSMP an initial two-year period of leave to remain is given, followed by a further three. Those who can show that they are law-abiding and economically active may then apply for indefinite leave to remain.
But almost simultaneously with the laying before Parliament of the rule-change limiting the availability of PFT—on 13 April 2006—the Department of Health sought to close the HSMP path by issuing guidance to NHS employers to the effect that IMGs with limited leave to remain expiring before the terminal date of any training post that was on offer should be offered the post only if the resident labour market criterion was satisfied.
The arguments
It is contended by Rabinder Singh QC for the appellants that IMGs, including importantly the members of BAPIO, and BAPIO itself had a legitimate expectation, not that the Immigration Rules would not be changed to their detriment, but that no such change would be undertaken without consulting them about it. It is common ground that consultation, if called for, has to be fully informed and open-minded. It is also common ground that no such consultation took place on the rule-change. Counsel for the Home Secretary submits that none was required by law. In the alternative she submits that sufficient notice was given of the change to meet such obligations as fairness may have required.
It is separately contended by the claimants that the Department of Health guidance (which by agreement remains in abeyance pending this case) is an abuse of governmental power because, without any foundation in the Immigration Rules or the general law, it seeks to impose a new restriction on the employability of IMGs. The second defendant's case is that is simply advice to NHS trusts as to how they should treat certain candidates for trainee posts, a matter of contract and not of public law.
Stanley Burnton J rejected both claims. He held that no authority, and no principle of law, made consultation a precondition of rule changes made under statute unless the statute itself required it or a practice of consultation had created a legitimate expectation that it would continue. Neither was the case here. Mr Singh submits that he was in error on both counts.
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