House of Lords

Published May 1, 2008

Regina (BAPIO Action Ltd and Another) v Secretary of State for the Home Department and Another

Before Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell and Lord Mance Speeches April 30, 2008 Government guidance to National Health Service employers which had the effect of preventing overseas trainee doctors from being offered postgraduate training places in NHS hospitals was unlawful.

The House of Lords so held (Lord Scott dissenting) in dismissing an appeal by the Secretary of State for Health against the decision of the Court of Appeal (Lord Justice Sedley, Lord Justice Maurice Kay and Lord Justice Rimer) ([2007] EWCA Civ 1139) allowing an appeal by the first claimant, BAPIO Action Ltd, a company established by the British Association of Physicians of India Origin, against the decision of Mr Justice Stanley Burnton ([2007] EWHC 199 (QB)) that the guidance was lawful.

The judge made his order in proceedings for judicial review brought by BAPIO and a second claimant, Dr Imran Yousaf, since deceased, against the Secretary of State for the Home Department and the Secretary of State for Health challenging the guidance, which had been published on the NHS website, as well as Statement of Changes in Immigration Rules 2006 (HC 1016).

Both the judge and the Court of Appeal held that (HC 1016) was not unlawful and that was not challenged in the House. Consequently, the Home Secretary no longer took any part in the proceedings.

The statement of changes affected those who wished to train in the United Kingdom and then return home, whereas the guidance affected those who wished to train and remain in the UK.

Prior to the guidance, international medical graduates could enter to undertake postgraduate medical training in the UK, which involved working in hospitals and receiving training as part of their employment, under the highly skilled migrant programme.

That programme facilitated the entry of skilled workers who intended to make the UK their main home and who could support themselves by working. Their leave to enter would be periodically renewed to see if the conditions were still being met, with eligibility for indefinite leave to remain after five years.

After a substantial increase in the number of British medical students, the Department of Health became concerned that the continued admittance of international graduates to training positions within the NHS would lead to domestic graduates being unable to obtain such positions and thus unable to complete their medical training in the United Kingdom.

It had therefore published its guidance, to the effect that NHS trusts should offer training posts to international graduates only if there were no suitable candidates in the resident labour market.

Mr Jonathan M. Swift and Mr Jonathan Moffett for the Secretary of State for Health; Mr Rabinder Singh, QC and Ms Janet Kentridge for BAPIO.

LORD BINGHAM said that section 3 of the Immigration Act 1971 required that changes in the practice to be followed in the administration of the Act for regulating entry into, and stay in the United Kingdom of nonnationals requiring leave to enter, including any rules about time limits or conditions, were to be made by immigration rules laid before Parliament.

The secretary of state had argued that the guidance had been given to NHS employers to influence their conduct in the employment field. It did not purport to alter, nor did it in fact alter the immigration status of anyone.

Counsel for BAPIO rejected that approach. The effect of the guidance was to subject those international graduates who had entered, or would enter, under the highly skilled programme to a new requirement, unexpressed in the immigration rules, that they should be employable as junior doctors only if they satisfied the resident labour market test.

Effective access to the highly skilled programme would be impeded by inability to meet the new test and consequent inability to obtain employment and support themselves.

His Lordship agreed. A new term, formally unauthorised, had been introduced into the permissions of international graduates who had entered under the highly skilled programme. The changes had not been made in the way which the 1971 Act required.

LORD MANCE, concurring in the result, said that he disagreed that such a new term had been introduced. International graduates with highly skilled programme status remained free in law to seek and accept NHS employment, and NHS trusts remained free to offer them employment, without committing any offence.

However, for those international graduates already in the UK with highly skilled programme status, the guidance would have undermined their legitimate expectations in a very fundamental way.

They would have come here intending to make the UK their main home. Prior to the guidance, their leave to stay would have been renewed without difficulty provided the requirements for renewal were met. The introduction of a resident labour market test would have radically undermined that expectation.

By issuing the guidance, the Secretary of State for Health, as one emanation of the Crown, had been exercising her prerogative to give informal guidance inconsistently with the legitimate expectations generated by the immigration rules and practice adopted by another emanation of the Crown, the Home Secretary.

The inconsistency and its effects were so profound as to render such guidance invalid. His Lordship agreed that the appeal should be dismissed, but did so by a different route to that taken by Lord Bingham.

Lord Carswell delivered a speech agreeing with Lord Bingham. Lord Rodger delivered a speech agreeing with Lord Mance. Lord Scott delivered a dissenting opinion.

Solicitors: Solicitor, Department of Health; Linder Myers, Manchester.

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