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Judgments - R (on the application of Bapio Action Limited and another) (Respondents) v Secretary of State for the Home Department and another (Appellant)

HOUSE OF LORDS

SESSION 2007-08

[2008] UKHL 27

on appeal from: [2007] EWCA Civ 1139

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

R (on the application of Bapio Action Limited and another) (Respondents) v Secretary of State for the Home Department and another (Appellant)

Appellate Committee

Lord Bingham of Cornhill

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Carswell

Lord Mance

Counsel

Appellants:

Jonathan Swift

Jonathan Moffett

(Instructed by Department of Health )

Respondents:

Rabinder Singh QC

Janet Kentridge

(Instructed by Linder Myers)

Hearing date:

28 FEBRUARY 2008

ON

WEDNESDAY 30 APRIL 2008

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

R (on the application of Bapio Action Limited and another) (Respondents) v Secretary of State for the Home Department and another (Appellant)

[2008] UKHL 26

LORD BINGHAM OF CORNHILL

1.  The issue in this appeal is whether the Secretary of State for Health acted lawfully in issuing the guidance she did to employing bodies within the National Health Service in April 2006. At first instance Stanley Burnton J, who also had other issues to decide, upheld the lawfulness of the guidance: [2007] EWHC 199 (QB). The Court of Appeal (Sedley, Maurice Kay and Rimer LJJ) [2007] EWCA Civ 1139 held that it was unlawful. The Secretary of State challenges that decision in this appeal to the House. Pending the outcome of this litigation the guidance has been suspended.

Background

2.  Under sections 1 - 3 of the National Health Service Act 1977, as under its successor statute, the Secretary of State for Health had an overall responsibility to provide or secure the provision of medical and related services under the auspices of the National Health Service. To ensure the provision of adequate care and treatment it is necessary that there should be appropriately qualified staff, including medical staff, in NHS hospitals. Among the medical staff employed in such hospitals, an important part is played by “junior doctors", a colloquial expression which I use to describe those who have successfully completed the first, academic, phase of medical education and are undertaking the second, postgraduate, phase by working in hospitals, treating patients and qualifying themselves to become fully-trained general practitioners or specialists. The structure of postgraduate education and training has changed from time to time over the years, but nothing in this appeal turns on the specific features of the training regime. It is not in doubt that the Secretary of State for Health has, in general, a power under the statutes to give guidance to employers within the NHS on matters pertaining to the employment of staff, nor that such guidance, although not strictly binding, will ordinarily be followed by such employers.

3.  Those working as junior doctors in the NHS have always, naturally enough, included nationals of the UK and the other member states of the European Economic Area. But there have not, historically, been enough of these to meet the demand of the NHS for junior doctors. So it has been necessary to recruit junior doctors from elsewhere. These have become known as international medical graduates (or IMGs). They are doctors who are not nationals of the UK or another EEA state and who, by reason of their immigration status, require leave to enter or remain in the UK and require permission to take up employment. The most fruitful source of IMGs has proved to be the countries of the Indian subcontinent, and the claimant in these proceedings is a company established by the British Association of Physicians of Indian Origin to represent the interests of doctors from the subcontinent in this country, of whom there are many. One such was the second claimant, Dr Imran Yousaf, an IMG from Pakistan, who was adversely affected by the changes described below and who, perhaps as a result, took his own life in January 2007.

4.  It is one of the oldest powers of a sovereign state to decide whether any, and if so which, non-nationals shall be permitted to enter its territory, and to regulate and enforce the terms on which they may do so. In this country in recent times the power has been exercised, on behalf of the Crown, by the Secretary of State for the Home Department. The governing statute is the Immigration Act 1971. This provides in section 1(2) that those not having a right of abode

“may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act …”

It is further provided, in section 1(4) that

“The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom.”

Section 3 of the 1971 Act contains general provisions for the regulation and control of immigration. Thus a non-British citizen ordinarily requires leave to enter the country, which may be subject to a temporal limit and to the imposition of conditions concerning employment and other matters. The Secretary of State is required to lay before Parliament statements of the rules, and changes in the rules, as to the practice to be followed in the administration of the Act for regulating the entry into and stay in the UK of non-nationals requiring leave to enter, including any rules about time limits or conditions, and such statements are subject to annulment by negative resolution in either House of Parliament.

5.  Since the NHS was heavily dependent on them to fill the ranks of junior doctors, IMGs enjoyed the benefit, for many years, of a very benign immigration regime. With effect from 1 April 1985 the regime became even more benign for those seeking entry to pursue postgraduate training. The Immigration Rules were then amended to introduce what came to be known as “Permit-Free Training” (“PFT”). IMGs who met 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. The initial period of entry was 12 months, but this could be extended for further periods of 12 months up to a maximum aggregate period of four years. It was, however, a feature of the scheme that the entrant should leave and return home when the training was complete or the four-year period had expired. If an IMG wished to take up an employment otherwise than for the purpose of postgraduate training, he had to obtain a work permit to do so.

6.  With effect from 1 April 2003 the Immigration Rules were amended to expand a programme introduced in January 2002 and known as the “Highly Skilled Migrant Programme” (“HSMP”). The object of the amendment was to facilitate the entry into the country of highly-skilled non-nationals who would be an asset to our economy. Unlike the PFT scheme just described, the HSMP applied to all skilled occupations and was not confined to the medical profession, although the selection criteria were such that most IMGs would meet them. The principal requirements for entry under the HSMP, as laid down in paragraph 135A of the Immigration Rules at the relevant time (the Rules have since been amended), were that the applicant produced confirmation by the Home Office that he met the criteria specified by the Secretary of State for entry under the programme, that he intended to make his main home in the UK, that he was able to maintain himself and any dependants adequately without recourse to public funds and that he held a valid UK entry clearance for entry as a highly skilled migrant. Where the conditions were met the applicant might be granted leave to enter for 12 months (now two years), renewable for up to a further three years and then further renewable if the conditions continued to be satisfied. After five years, if the conditions were satisfied, the entrant would be eligible for indefinite leave to remain under paragraph 135G. Unlike PFT this scheme did not require those admitted to return home after a specified period; it catered for those who might choose to stay here indefinitely.

7.  In earlier days, as explained above, the NHS had been heavily dependent on IMGs to make good the shortfall among UK/EEA nationals seeking employment as junior doctors in the NHS. But by about 2005 the situation had altered as a result of steps taken to increase very substantially the number of students (most of them British or EEA nationals) graduating in medicine in this country. Not only was there no longer a need to recruit IMGs to fill the ranks of junior doctors in the NHS; the recruitment of such IMGs would deny employment as junior doctors to potentially large numbers of home-grown medical graduates whom the state had expensively educated and needed to train if they were to render the service for which they had been educated. The danger was particularly acute because, as stated by Ms Mellor (the Secretary of State’s witness in these proceedings), in para 157 of her statement:

“There was a risk of IMGs displacing a significant number of United Kingdom doctors. Many IMGs in the United Kingdom are highly skilled and have several years’ experience in their chosen field. Accordingly, they are highly attractive to NHS trusts seeking to provide services at junior doctor levels.”

It is the steps taken to address this new problem which lie at the heart of this appeal.

The April 2006 changes

8.  The object of the Department of Health (“the Department”) was, very broadly, to debar IMGs from employment as junior doctors so as to keep these posts open for graduates who were British or EEA nationals. The first step towards achieving that object was to secure an amendment of the Immigration Rules relating to PFT. The effect of the change was that henceforward only a graduate of a UK medical school could benefit from PFT, and then only for undertaking the first stage of postgraduate training, and for a period not extendable beyond three years. Thus while the amendments did not altogether abolish PFT, they did very significantly restrict its availability. The amendments were made with minimal prior publicity, in order to prevent prospective applicants for PFT anticipating the restriction and so defeating its purpose.

9.  The Department appreciated that these changes to the Immigration Rules did not prevent IMGs obtaining leave to enter the UK and permission to work here through an employment route other than PFT under the Rules, such as the HSMP or the work permit provisions. There were concerns that the HSMP might prove an alternative route for IMGs to obtain appointments as junior doctors. So the Department proposed that the HSMP be restricted in the same way as the PFT scheme, so as to exclude IMGs at postgraduate training level from the HSMP. An amendment of the Immigration Rules to this effect could not, however, be agreed with the Home Office, with whom the responsibility lay for amending the Rules. So the Department decided to take action on its own. It did so by issuing, on 13 April 2006, the guidance attacked in these proceedings.

10.  To speak of the guidance being “issued” is to suggest a degree of official formality which was notably lacking. It appears that the guidance was published on the NHS Employers’ website in terms approved by the Department, but no official draft, record or statement of the guidance has been placed before the House, which has instead been referred to an e-mail beginning “Dear All” sent by an official of the Immigration and Nationality Directorate of the Home Office in response to confusion caused by some earlier communication. It is for others to judge whether this is a satisfactory way of publishing important governmental decisions with a direct effect on people’s lives. The parties are, however, agreed on the effect of the advice, directed to NHS employers, which was that

“… only those [IMGs] whose limited leave extends beyond the period of the post on offer should be considered in the same way as UK/EEA nationals. Those whose limited leave will expire before the end of the post on offer should only be offered the post if there are no suitable candidates in the resident labour market (… there is an exception to this, in that those granted limited leave as a refugee can be considered in the same way as UK/EEA nationals).”

The rationale underlying the guidance is very clearly explained by Ms Mellor in para 162 of her statement:

“The [Department’s] solution to its main concern (ie that IMGs would by-pass the restriction of PFT by using the HSMP) and its linked more specific concern (ie that those IMGs who did use the HSMP might not be able to complete their training positions) was to require that IMGs who had certain categories of limited leave to enter or remain in the United Kingdom (apart from those recognised as refugees) be treated as if they required a work permit to enter training positions in the NHS if the duration of their leave did not cover the duration of the training position for which they were applying. This meant that, in order for such a position to be offered to a relevant IMG, the employer would have to demonstrate that the resident market labour test was met. It was considered that managing IMG entry to training positions by the application of the resident labour market test would avoid the problems that I have described above, including the problems which gave rise to the decision to restrict PFT.”

She makes plain (para 151) that a deliberate decision was taken to make the guidance more restrictive than the Rules; it was not intended (para 164) to reflect the provisions of the Rules, but to go further.

The argument

11.  The claimants’ challenge to the guidance rests essentially on these propositions:

(1)  The issue of the guidance on behalf of the Secretary of State was a public law act reviewable as such.

(2)  The content of the guidance fell within the scope of sections 1 and 3 of the 1971 Act.

(3)  The content of the guidance was accordingly to be addressed, if at all, in Immigration Rules and statements made by the Home Secretary under the procedure prescribed in section 3 of the 1971 Act and not otherwise.

(4)  The mandatory requirements of the 1971 Act could not be circumvented by the intervention of a minister other than the Home Secretary.

(5)  The issue of the guidance was therefore unlawful.

I did not understand counsel for the appellant Secretary of State (Mr Jonathan Swift) to take issue with proposition (1). Nor, if the claimants were right on proposition (2), did I understand Mr Swift to contend that propositions (3), (4) and (5) did not follow. But he did very strongly submit that proposition (2) was not correct, and that the succeeding propositions fell with it.

12.  The crux of the argument on proposition (2) was in essence very simple. The Secretary of State submitted that the guidance was given to NHS employers to influence their conduct in the employment field. It related to employment. It did not purport to alter, nor did it in fact alter, the immigration status of anyone. Counsel for the claimants (Mr Rabinder Singh QC) rejected this approach, as elevating form over substance. The effect, and the intended effect, of the guidance was, he submitted, clear: it was to subject those IMGs who had entered, or who would enter, under the HSMP to a new requirement, unexpressed in the Rules, that they should be employable as junior doctors only if they satisfied the resident labour market test (qualified by the period of their unexpired leave to remain). Satisfaction of the resident labour market test had always been a requirement of obtaining a work permit, but neither PFT nor the HSMP had included such a requirement. Access to the former route had been effectively blocked by the amendment to the Rules. Effective access to the latter for many IMGs would be impeded by inability to meet the new test and consequent inability to obtain employment and so support themselves.

13.  Stanley Burnton J rejected the claimants’ challenge in para 63 of his judgment. The guidance did not affect private hospitals, he pointed out, so an IMG who qualified under the HSMP could obtain employment there. If the guidance affected immigration law or practice it would restrict the leave that might be obtained by an IMG who was offered a post in a private medical establishment, but it did not.

14.  Sedley LJ (para 50 of his judgment) took a different view. The guidance directly and intentionally affected immigration law and practice by imposing on the possibility of employment in the public sector a restriction beyond those contained in the Rules. It made no difference (para 52) that the guidance did not affect private hospitals: the partial nature of the restriction emphasised that the state was using its power as a policy-maker, not an employer. Maurice Kay LJ agreed (para 61): the purpose of the guidance was to regulate the conditions attaching to the immigration status of an identified group. Rimer LJ agreed with both judgments (para 66).

15.  I am satisfied that the arguments of the claimants and the reasons of the Court of Appeal are correct. The Department’s object, as stated by its witness (para 10 above) “was to require that IMGs who had certain categories of limited leave to enter or remain in the United Kingdom (apart from those recognised as refugees) be treated as if they required a work permit to enter training positions in the NHS if the duration of their leave did not cover the duration of the training position for which they were applying.” In other words, a new term, unwritten and formally unauthorised, was being silently introduced into their permissions. There was a further, less obvious but no less real, disadvantage to IMGs seeking to rely on the HSMP. A cardinal feature of that programme, as noted above, was the expectation of renewal if the conditions continued to be met. Thus the initial, or renewed, period of leave was not to be regarded as finite for the economically active. There is, however, no suggestion in the guidance that account would be taken of the prospect of renewal. Thus HSMP entrants would be subject to the resident labour market test even though, if appointed, they could ordinarily have expected their period of leave to be extended under the programme as formerly operated. These changes were not made in the way which the 1971 Act requires.

16.  I would dismiss this appeal with costs.

LORD SCOTT OF FOSCOTE

My Lords,

17.  I have had the great advantage before writing this opinion of reading in draft the opinions of my noble and learned friends Lord Bingham of Cornhill and Lord Mance. In paras 1 to 10 of his opinion Lord Bingham has set out the factual and statutory background to the issue that is before the House for decision. It is unnecessary for me to repeat, and I gratefully adopt his account. The issue, as Lord Bingham has said, is whether the Secretary of State for Health acted lawfully in issuing, on 13 April 2006, the guidance she did to NHS employers, in particular NHS training hospitals. The guidance was to the effect that, when NHS employers were looking for junior doctors to fill post-graduate training positions, applicants who were not nationals of the UK or any other European Economic Area member state, and whose leave to remain in the UK, granted pursuant to the Immigration Act 1971, would not extend beyond the duration of the position on offer, should not be offered the position unless there were no suitable candidates who were UK or EEA nationals.

18.  In considering the justification for the contention that it was unlawful for the Secretary of State to have issued this guidance it is necessary in my opinion to start by noticing the nature of the statutory duties and the breadth of the statutory powers of the Secretary of State in relation to the National Health Service. Her duties and powers are to be found in the main in the National Health Service Act 1977, replaced as from 1 March 2007 by the National Health Service Act 2006 the provisions of which are, so far as relevant to this appeal, to the same effect. Section 1 imposes a duty on the Secretary of State to provide in England a national health service that (subject to any statutory exceptions) is free of charge. Section 3 imposes a duty on the Secretary of State to provide hospital facilities “to such extent as he considers necessary to meet all reasonable requirements". Section 2 empowers the Secretary of State to “do any other thing … which is calculated to facilitate, or is conducive or incidental to, the discharge of …” these statutory duties, and section 8 empowers the Secretary of State to give directions to any NHS institutional employer about any of its functions. These are very important duties and very broadly expressed powers.

19.  It is not suggested in the present case that the giving of the guidance of 13 April 2006 was outside the width of the statutory powers conferred on the Secretary of State. Nor is it suggested that the guidance was given otherwise than for the purpose of trying to ensure the continued effective provision of the hospital and medical health services that are needed for people living in England. Nor is it suggested that the reasons why it was thought desirable that the guidance should be given for that purpose were not reasons of substance. In short, the attack on the guidance has not been directed at all to the desirability in the interests of an efficient National Health Service that the guidance should have been given. The attack has been directed instead to the depressing effect of the guidance on the expectations of those medical graduates who are not UK or EEA nationals but who, previously to the guidance, would have been able to compete on an equal footing with UK and EEA nationals for post-graduate training positions at NHS hospitals in England. The respondents point out that a number of non-UK or EEA medical graduates have been permitted entry into the UK under rules made pursuant to the Immigration Act 1971 without any limitation having been imposed on their entitlement to seek post-graduate training positions at NHS hospitals. They contend that the Secretary of State’s 13 April 2006 guidance constitutes an interference with the legitimate expectations of these non-UK or EEA medical graduates and, in particular, those given leave to enter the UK pursuant to the Highly Skilled Migrant Programme (“the HSMP”) and that the guidance is accordingly unlawful.

20.  In considering this contention it is necessary, although the Secretary of State’s reasons for giving the guidance have not been challenged, to keep in mind what those reasons were. They are explained by Deborah Mellor in her witness statement of 21 September 2006 submitted on behalf of the Secretary of State. An important part of the training of doctors consists of the post-graduate training of graduates from medical school, “junior doctors” as they are commonly called. The post-graduate training involves the junior doctors working in hospitals and receiving training as part of their employment by NHS trusts. After completing this post-graduate medical training the erstwhile junior doctor will be fully qualified.

21.  Junior doctors who are not nationals of the UK or of any other EEA member state require, as do all other non-nationals, leave to enter or remain in the UK and permission to work here. It had been for some time not difficult for foreign junior doctors to obtain the requisite leave. Home grown junior doctors were in short supply and the needs of the NHS required their numbers to be supplemented by junior doctors from abroad who came to the UK for post-graduate training purposes and took up training posts at UK hospitals. In order to facilitate the entry into the UK of these foreign junior doctors, Immigration Rules were amended to allow them entry for post-graduate training purposes without their having to obtain a work permit. This was the so-called “permit-free training", or PFT, scheme. The total duration of any PFT period could not exceed certain specified limits and, as a general rule, the doctor had to leave the UK on the expiry of his or her training programme.

 
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