|Judgments - R (on the application of Bapio Action Limited and another) (Respondents) v Secretary of State for the Home Department and another (Appellant)
22. In the autumn of 2005, however, the Department of Health reviewed its position on the recruitment by the NHS of international medical graduates (IMGs). There had been considerable increases in the number of medical graduates emerging from UK medical schools who were UK nationals. There was no longer perceived to be an NHS need to recruit IMGs. Indeed the recruitment of IMGs to fill training positions at NHS hospitals was perceived to have become undesirable to the extent that it was preventing home-grown medical graduates from obtaining post-graduate training positions and thereby being able to complete their medical training in the UK. Bearing in mind that the IMGs, or a great majority of them, would be leaving the UK after the completion of their post-graduate medical training, it was feared that a shortage of fully qualified doctors in practice in the UK might be the result. So changes in the Immigration Rules with effect from 3 April 2006 were introduced. Under the amended Rules only foreign nationals who were graduates from UK medical schools could benefit from PFT. Transitional provisions catered for IMGs already in training positions.
23. In 2002, however, the HSMP scheme had been introduced. This was an immigration scheme operated by the Home Office under Immigration Rules made pursuant to the 1971 Act. The HSMP scheme was open to all categories of skilled workers, including medical graduates and fully qualified doctors. It was, and is, geared towards skilled individuals who wanted to settle in the UK. The requirements of a migrant desirous of entering the UK under the HSMP scheme are the production of a Home Office document confirming that the relevant criteria for HSMP entry are met, the intention to make the UK the migrants main home, the ability of the migrant to maintain and accommodate himself without recourse to public funds and, in addition, the holding of a valid UK entry clearance. A person fulfilling these requirements may be admitted to the UK for a period not exceeding two years but the leave may then be extended to three years and thereafter the migrant can apply for indefinite leave to remain. Migrants entering the UK under the HSMP do not require a work permit. They are expected to look for and obtain employment in any category for which they are qualified and to support themselves. Medical graduates entering the UK under the HSMP and hopeful of obtaining post-graduate vocational training would naturally apply for training positions at UK NHS hospitals.
24. The changes in the Immigration Rules that withdrew the PFT scheme under which foreign junior doctors could enter the UK and obtain post-graduate training positions at NHS hospitals did not prevent IMGs from obtaining leave to enter the UK and permission to work here through alternative employment routes available under the Immigration Rules, that is to say, the HSMP provisions or the ordinary work permit provisions. The Home Office was not willing to make changes in the Immigration Rules relating to the HSMP scheme or relating to the ability of IMGs to obtain work permits. The Secretary of State for Health was concerned that the Department of Healths policy that priority for post-graduate training positions at NHS hospitals should be given to UK nationals and EEA nationals might be side-stepped by IMGs entering the UK under the HSMP scheme, then applying for post-graduate training positions at NHS hospitals and thereby undermining the Departments policy. A damaging effect on the NHS, brought about by IMGs using the HSMP route for making applications to and being accepted by NHS employers for post-graduate training positions to the detriment of the prospects of home-grown applicants, was feared. Hence the guidance of 13 April 2006 that IMGs should not be appointed unless no suitable UK or EEA national were available.
25. It is clear that an intended effect of the 13 April 2006 guidance would be to reduce the prospects of IMGs, junior doctors who had entered or proposed to enter the UK, whether under the HSMP scheme or under the ordinary rules, obtaining post-graduate training positions at NHS hospitals. But the guidance has no legal effect whatever on the immigration status of these junior doctors. They remain entitled to be in the UK. They remain entitled to apply for training positions at any hospital, NHS or private. If a training position is offered to any of them, whether by an NHS hospital or a private one, no immigration offence is committed; if the offer is accepted, no immigration offence is committed. The guidance has no legal effect, although it is to be expected that NHS hospitals would try to follow it.
26. The legitimate expectations", on which the respondents rely, can reasonably be described, in my opinion , as an expectation that the employment policy of the Department of Health, so far as junior doctors from outside the UK and EEA and post-graduate training positions at NHS hospitals are concerned, would remain unaltered. I am not clear, however, on what basis this expectation, whether or not described as legitimate", should be treated as fettering the ability of the Secretary of State for Health to adjust Departmental policy so as to afford priority in offers of post-graduate training positions first to suitable UK and EEA junior doctors if in her judgment the discharge of her statutory duties under the 1977 Act, now the 2006 Act, required that adjustment. The reasons, as explained by Deborah Mellor in her witness statement of 21 September 2006, for the adjustment in policy that the guidance represents seem to me very powerful. As I have said, the soundness and good sense of the reasons has not been challenged. So, I repeat, on what legal basis can the guidance be challenged?
27. "Legitimate expectations is sometimes put forward as a complaint that some procedural step, such as consultation with some person or body, should have taken place before the challenged decision could properly have been made. I do not understand that to be the complaint here. At least it has not been advanced before your Lordships as the basis of the complaint. The complaint, as I understand it, is based on expectations of substantive, as opposed to procedural, benefit, namely, that the guidance interfered with expectations, engendered in medical migrants when given permission to enter the UK, without any condition attached to their ability to seek employment, that they would be able to compete on an equal footing with home grown medical graduates for post-graduate training positions at NHS hospitals. But why should unconditional leave to enter the UK granted by the Home Secretary, whether under the HSMP scheme or under any other rules made pursuant to the Immigration Act, fetter the breadth of the statutory powers of the Secretary of State for Health given to her for the purpose of discharging her statutory duty regarding the preservation and promotion of the efficiency of the NHS in general and, in particular, of NHS hospitals? The answer given by my noble and learned friends Lord Bingham of Cornhill and Lord Mance appears to me to depend on the constitutional principle that the Crown is indivisible, that Ministers are merely emanations of the Crown, that leave to medical graduates to enter the UK under the HSMP scheme and the guidance of 13 April 2006 given to the NHS employers must be treated as coming from the same source, and that the latter should not be permitted to qualify or detract from an unqualified entitlement available under the former.
28. My Lords, the constitutional theory of the indivisibility of the Crown is in my opinion no basis upon which an important issue as to the lawfulness of guidance given by a Minister to institutions for which she has statutory responsibility ought to be decided. In Town Investments Ltd v Department of the Environment  AC 359, 380-381 Lord Diplock said that
to continue nowadays to speak of the Crown as doing legislative or executive acts of government, which, in reality as distinct from legal fiction, are decided on and done by human beings other than the Queen herself, involves risk of confusion".
And Lord Simon of Glaisdale, at p 400, after referring to the Crown as a corporation aggregate headed by the Queen commented that the legal concept does not correspond to the political reality". Nor does it. The statutory duties, responsibilities and powers under the National Health Service Acts fall on the Secretary of State for Health and her departmental officials. It is they who make the judgmental decisions necessary to be made and do the things necessary to be done if the statutory duties imposed by the National Health Service Acts are to be properly discharged. Similarly, the statutory duties, responsibilities and powers under the Immigration Act 1971 fall on the Home Secretary and his departmental officials. I can see no good or sensible reason why what is done by one department in the proper discharge of its statutory duties should be taken to be a limitation on what can be done by another department in the otherwise proper and unexceptionable discharge of its own quite separate statutory duties and the exercise of its own quite separate statutory powers. In chapter 5, The Crown and the Changing Nature of Government", in Sunkin and Paynes The Nature of the Crown (1999), the author, Mark Freedland, argues that the concept of a unitary Crown is an imposed rule, in effect a legal fiction, rather than a real state of affairs (p 114), that rules, conventions and understandings of this kind obscure a reality in which executive government is conducted on a departmentalised basis (p 115) and that the unitary Crown concept is a legal fiction which may lead to unsatisfactory regulation of executive government. My Lords there seems to me, if I may respectfully say so, much good sense in these remarks. Issues about legitimate expectations that are said to have been interfered with by some executive act or decision and the lawlessness of which is challenged in judicial review proceedings should surely be resolved on a basis of reality and not on the basis of an archaic constitutional theory that has become legal fiction.
29. The imperative underlying a judicial review challenge on legitimate expectations grounds to an executive act or decision is, or should be, that of fairness. The thought that the decision-maker should not be allowed to frustrate expectations that have been engendered by assurances that the decision-maker has, whether expressly or impliedly, previously given seems to me the underlying theme. But there are two limiting factors that, in my opinion, need to be taken into account in a case such as the present. First, the assurances that are relied on should be assurances that have been given by the decision-maker. Sullivan J in R v Secretary of State for the Home Department, Ex p Mapere  Imm AR 89, paras 34, 36 agreed that for a legitimate expectation to arise it had to be founded on some promise or policy statement or practice made by the relevant decision-maker and that
it would be wrong in principle for courts to rule that a decision-makers discretion should be limited by an assurance given by some other person".
To the same effect, in De Smiths Judicial Review 6th ed (2007), the authors say (at para 12-032) that
The representation by a different person or authority will therefore not found the expectation. Thus representations by the police will not create a legitimate expectation about the actions of the prison service".
I respectfully agree. Representations made by the officials in the Home Office, whether expressly or impliedly, in accepting medical graduates from outside the UK or EEA into the HSMP scheme, or otherwise giving doctors permission to enter and work in the UK without any limiting conditions, cannot, in my opinion, be prayed in aid so as to fetter the Secretary of State for Healths statutory discretion regarding the policy to be applied by NHS hospitals when deciding who to accept for post-graduate training positions.
30. That brings me to the second limiting factor. Before the 13 April 2006 guidance was issued foreign medical graduates with leave to enter the UK were able to compete for training positions at hospitals in England on an equal footing with UK and EEA nationals. This was in accordance with the pre-13 April 2006 policy of the Department of Health. To that extent, therefore, expectations held by foreign medical graduates that they would continue to be able to compete on an equal footing with home-grown medical graduates can be said to have been induced by the departments pre-13 April 2006 policy. But can these expectations be elevated to a level that deprives the departmental policy regarding employment of doctors at NHS hospitals of the flexibility that it needs in order to adjust to changing circumstances? It is not, in my opinion, open to the Department of Health to fetter its ability to adjust its policy from time to time so as to continue to discharge its statutory duty to ensure the proper functioning of NHS hospitals. In my opinion, the respondents case in this appeal, while it has demonstrated expectations on the part of international junior doctors regarding their employment prospects for post-graduate training at NHS hospitals that may justify being described as reasonable", does not justify elevating those expectations to the point at which they can succeed in challenging the sensible and, to my mind, well justified guidance given to NHS employers on 13 April 2006. Whether or not the expectations that departmental policy regarding the obtaining of post-graduate training positions at NHS hospitals would remain unaltered regardless of changing circumstances should be regarded as reasonable, they cannot, in my opinion, be described as legitimate for judicial review purposes.
31. The Secretary of State for Health was entitled, in my opinion, for the reasons described by Deborah Mellor in her witness statement, to adjust the departmental policy regarding employment of junior doctors in post-graduate training positions at NHS hospitals so as to give priority to the employment of those who were UK or EEA nationals, and to give the 13 April 2006 guidance accordingly. It is well arguable indeed that, having regard to those reasons, she was bound to give that guidance. I would, therefore, allow this appeal.
LORD RODGER OF EARLSFERRY
32. I have had the advantage of reading your Lordships speeches in draft. For the reasons to be given by my noble and learned friend, Lord Mance, I too would dismiss the appeal.
33. In England the executive power of the Crown is, in practice, exercised by a single body of ministers, making up Her Majestys Government. With the increased range of responsibilities of central government today, there are, of course, more ministries dealing with domestic affairs than once there were, but they all exist to carry out the policies of the Government. As this case illustrates, policies adopted in one field often have repercussions in other fields. Indeed, responsibility for government policy in particular fields is frequently transferred from one ministry to another in the hope of achieving the elusive goal of greater overall coherence. In these circumstances Schedule 1 to the Interpretation Act 1978, which declares that the term Secretary of State in a statute means one of Her Majestys Principal Secretaries of State", expresses a principle of constitutional law of considerable practical importance: all Secretaries of State carry on Her Majestys government and can, when required, exercise any of the powers conferred by statute on the Secretary of State. The same applies, in broad terms, to the exercise of the prerogative powers of the Crown.
34. I am accordingly satisfied that it would be wrong, not only as a matter of constitutional theory, but as a matter of substance, to put the powers, duties and responsibilities of the Secretary of State for the Home Department into a separate box from those of the Secretary of State for Health. Both are formulating and implementing the policies of a single entity, Her Majestys Government.
35. Until April 2006 the Government had encouraged IMGs with HSMP status to come to this country in the expectation that they would get work in the National Health Service. The aim was that these skilled migrants would help staff the Health Service. In fact, for some years, it must have been clear to the Government that, due to a change which it had itself initiated soon after taking office, from about 2005 there would be an increased supply of home-grown medical graduates. In order to try to provide jobs in the National Health Service for these home-grown doctors, in April 2006 the Government issued advice to NHS trusts in England. (Similar advice was issued for Scotland, Wales and Northern Ireland.) The advice was intended to free up places by making it impossible in practice for IMGs with HSMP status, including those already in this country, to obtain appropriate NHS posts. In my view, that was unfair to the IMGs with HSMP status in this country because the Government thereby dashed the legitimate expectations which it had fostered and on which they had acted. The advice was accordingly unlawful.
36. Obviously, the Government could have achieved its objective if it had amended the Immigration Rules. For various reasons, it chose not to do so. But, if it had chosen to try to amend the Rules, it would have required to pay the political price of subjecting the proposed change, and its highly damaging effects on the IMGs with HSMP status in this country, to the scrutiny of Parliament.
37. I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Bingham of Cornhill. I gratefully adopt his statement of the facts and do not propose to repeat them. I shall also use the same abbreviations as he has. Lord Bingham held (para 15) that a new term, unwritten and formally unauthorised, was being silently introduced into the permissions of the IMGs to enter or remain in the United Kingdom. He further held that IMGs on the HSMP were deprived by the effect of the guidance of their ordinary expectation that their period of leave to remain would be extended, as it had been under the programme as formerly operated. I agree with both reasons and shall add only a few observations.
38. It is not in dispute that the Secretary of State and the Department of Health (the Department) had as their object to keep medical training posts in the United Kingdom for junior doctors educated and resident there. The supply of such junior doctors available to take training posts had been materially increased, and the Department understandably enough wished to retain them in the United Kingdom, where their expensive medical education could be put to good use in the NHS. In order to achieve this object the Department had to restrict the numbers of IMGs coming to the United Kingdom and taking training posts. After obtaining an amendment to the Immigration Rules restricting the availability of permit-free training, it was still faced with the possibility that the HSMP might prove an alternative for IMGs to obtain training appointments. In order to close this gap the Department sought a further amendment of the Immigration Rules, to exclude IMGs at postgraduate training level from the HSMP. The Home Office did not agree to secure such an amendment, and the Department decided to achieve its object by the issue of the guidance whose validity is challenged in the present litigation.
39. It is apparent accordingly that the officers of the Department appreciated very well that the effect of the guidance would be to restrict immigration to a greater extent than had been done hitherto by the Immigration Rules. That was their intention, as is confirmed by the terms of para 162 of the statement made by Ms Mellor (quoted in para 10 of Lord Binghams opinion). The Departments ultimate object was no doubt to make more training posts available for UK-educated doctors, in itself a legitimate employment object. But its chosen method for achieving this object was to impose a restriction which operated in effect to alter the permitted limits of leave for non-nationals to enter and remain in the country. This could only lawfully be done by an amendment to the Immigration Rules, which would have had to be laid before Parliament and would have been subject to negative resolution. This was not done, and it must follow that the guidance is invalid.
40. The Secretary of State, acting through the officials of the Department, intended to achieve a restriction of immigration as a means of securing more training posts for UK-educated medical graduates. That that was her intention and would be the effect if the guidance were brought into operation is quite apparent. The restriction is an essential step in achieving the employment objectives of the Department, but it cannot be done without an amendment to the Immigration Rules. This straightforward finding is sufficient to determine the appeal and accordingly the guidance containing the restriction must be declared to be unlawful.
41. I would dismiss the appeal.
42. I have had the benefit of reading in draft the opinion of my noble and learned friend, Lord Bingham of Cornhill. I gratefully adopt his account of the background and facts in paras 1 to 10.
43. As Lord Bingham notes (paras 9-10), the Department of Healths guidance was designed to address the position of international medical graduates (IMGs) with leave to enter under the Highly Skilled Migrant Programme (HSMP). The highly informal e-mail message, which now evidences the guidance, began with an express reference to those with HSMP status. There are however three different categories of IMGs who were potentially affected by the guidance: (i) IMGs within the United Kingdom having HSMP status at the date of the guidance; (ii) IMGs within the United Kingdom under the permit free training (PFT) scheme at the date of the guidance; and (iii) IMGs overseas who might wish in the future to come to the United Kingdom to complete their medical training.
44. With effect from 3 April 2006 the Immigration Rules were changed to restrict PFT, in a manner which potentially affected IMGs within categories (ii) and (iii). In short, permits were in future only to be issued to IMGs for posts that could not be filled by United Kingdom or European Economic Area doctors (the resident labour market - RLM - test). Certain transitional provisions were however included by way of informal concession in the Immigration Directorates instructions. First, any existing leave to enter or remain held by an IMG for PFT was to continue unchanged to expiry; second, if the existing leave was for PFT at Specialist Registrar level, the IMG could switch into work permit employment without meeting the RLM test. Third, any IMG offered a training placement prior to 7 March 2006 due to commence on or before 4 August 2006 whose existing leave did not allow him to complete that new position could obtain a permit without meeting the RLM test. Any other IMG without, or seeking an extension of, existing leave had to satisfy the RLM test.
45. In these circumstances, the Department of Health decided that steps needed to be taken in relation to those eligible under the HSMP scheme, particularly those falling within categories (ii) and (iii). In her witness statement dated 21 September 2006 Ms Deborah Mellor of the Department of Health explains that the concern was that:
the HSMP would become the entry route of choice for IMGs if PFT were to be restricted. .. [M]ost IMGs within the UK would be eligible for the HSMP and . the HSMP would be attractive to IMGs from outside the UK given the then current high level of IMG interest in working and training in the UK. If the number of HSMP doctors grew significantly then HSMP doctors would be increasingly successful in displacing United Kingdom graduates in competition for entry to training positions and this would leave insufficient training positions available to accommodate the increasing number of United Kingdom medical graduates with all the costs and consequences for UK graduate unemployment and emigration.
46. The first respondent, BAPIO Action Ltd, a company established by the British Association of Physicians of Indian Origin, a voluntary organisation which represents the interests of doctors from the Indian subcontinent now working in the UK": para 1 of the first witness statement of its president, Dr Ramesh Mehta, dated 6 June 2006. Dr Mehtas statement estimated the number of IMGs working in NHS hospitals at that date as about 30,000, the number of IMGs in training as about 15,000, and the number of IMGs in the United Kingdom but unemployed and looking for their first job as about 5,000 (para 5). These figures do not distinguish between IMGs within categories (i) and (ii). The respondents make that point in their written case (para 29). They go on to observe that the differences between them are however highly significant in this context - a point to which I return in para 62 below.
47. The effect on IMGs within categories (i) and (ii) of the changes to the Immigration Rules and of the guidance (until suspended upon the commencement of these proceedings) is indicated by Dr Mehtas second statement dated 22 November 2006. He records that Many IMGs on the HSMP were not considered for posts as a result of the DH guidance (para 8); and that five out of six IMGs responding to a survey sent to 1000 IMGs said that the combination of the Rule changes and the guidance meant that they would be unable to complete their training, because their present PFT leave would be insufficient (para 3). The present proceedings were thus brought in the interests of those in categories (i) and (ii) above. The guidance, on the other hand, was directed at categories (ii) and (iii), but its terms covered all three categories and did so without any transitional provisions for IMGs in category (i). Lord Binghams reasoning and conclusions extend to persons within all three categories: see paras 12 and 15, where he refers to IMGs who had entered, or who would enter, under the HSMP and to a further, less obvious but no less real, disadvantage to IMGs seeking to rely on the HSMP". I return to these distinctions in paras 60-62 below.