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

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48.  In para 11 of his opinion, Lord Bingham formulates five propositions which he identifies as constituting the essential basis of the respondents’ challenge to the Secretary of State for Health’s guidance. The difficulty lies to my mind in propositions (2) and (3). In particular, what characteristics can be said to bring guidance so “within the scope” of sections 1 and 3 of the Immigration Act 1971 as to mean that it can only be introduced, if at all, by amending the Immigration Rules or by the issue of statements by the Home Secretary under section 3 of the 1971 Act? And is the position the same for all three categories of IMGs identified above, ie even for IMGs without existing HSMP status (category (ii)) or without any immigration status at all (category (iii))?

49.  The respondents have adopted a variety of phrases to identify the nature of their objection to the guidance. Not surprisingly, these focus on the position of IMGs in categories (i) and (ii), often without distinguishing between them. The respondents described the guidance, in their judicial review claim form, as “unreasonable, discriminatory, unfair and an abuse of power” and “highly prejudicial in its effect"; before Stanley Burnton J, as a “misrepresentat[ion of] the effect” of, and “an illegitimate attempt to amend", the Immigration Rules; and in their notice of appeal, as “directly related to, indeed predicated on, the immigration status of [IMGs with HSMP status]” and as having the effect of “depriv[ing] IMGs applying for jobs on the NHS of a benefit to which their immigration status entitled them". The Court of Appeal, in upholding the respondents’ objection described the guidance as “directly and intentionally affect[ing] immigration law and practice by imposing on the possibility of employment in the public sector a restriction beyond those contained in the Rules” (para 50, per Sedley LJ) and “a document, the nature and purpose of which was to regulate the conditions attaching to the immigration status of an identified group” (para 61, per Maurice Kay LJ). In oral submissions to the House, Mr Rabinder Singh QC said that “the defining feature” of the case was the “express link in the guidance to immigration status” - in particular, the guidance applied to IMGs because they had no right of abode in the United Kingdom; it also applied to IMGs with HSMP status the resident labour market test which work permit holders had to satisfy. The guidance, he submitted, “curtailed and limited the scope of and the legal effects following from the permissions those doctors had". For whatever reasons, neither illegitimate discrimination nor gross unreasonableness has been pursued as an objection to the guidance. The variety of other ways in which the case can be and has been put makes it necessary to analyse the guidance with care in order to determine whether and, if so, to what extent its issue by the Secretary of State for Health was inconsistent with the Immigration Act and Rules.

50.  The Immigration Act 1971 regulates the position of persons who do not have the right of abode in the United Kingdom. Section 1(2) provides that:

“Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry, stay in and departure from the United Kingdom as is imposed by this Act; ……”

Under section 1(4) the Secretary of State may lay down rules as to practice which

“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 ….”

Section 3(1)(c) further provides that, if a person is given limited leave to enter,

“it may be given subject to … (i) a condition restricting his employment or occupation in the United Kingdom";

and section 3(3) adds that limited leave

“may be varied, …. by adding, varying or revoking conditions, but if the limit on its duration is removed, any conditions attached to the leave shall cease to apply".

51.  These sections make clear that immigration status, including any conditions to which it is made subject, attaches to the person to whom it is granted. It is a criminal offence for such a person to overstay or to fail to observe a condition attaching to his leave, including a restriction on the employment he or she may undertake: Immigration Act 1971, section 249(1)(b). More recently, and subject to certain defences, it has also been made an offence for an employer to employ a person who has no subsisting leave to enter or remain or whose leave is subject to a condition precluding him or her from taking up the employment: Asylum and Immigration Act 1996, section 8, as amended.

52.  The Secretary of State for Health’s guidance does not effect any alteration in law to the immigration status of IMGs with HSMP under the Immigration Act or Rules. Such IMGs remain in law free to seek and accept employment with NHS trusts without committing any offence. NHS trusts remain in law free to offer such IMGs employment without committing any offence. Implementation of the guidance would mean that such IMGs were much less likely in practice to be offered employment. But that would be a consequence not of any change in their immigration status in law, but because of the employment policy introduced for NHS employers by the guidance. I am therefore unable to agree with Lord Bingham’s analysis in para 15 of his opinion that “a new term, unwritten and formally unauthorised, was being silently introduced into their permissions". I am equally unable to agree that it is accurate to describe the guidance as “directly and intentionally affect[ing] immigration law and practice ……” (per Sedley LJ, para 50) or as regulating by its “nature and purpose … the conditions attaching to the immigration status of an identified group” (para 61, per Maurice Kay LJ).

53.  The Secretary of State in issuing the guidance was not exercising or purporting to exercise any power under the Immigration Act or Rules; and it was not the purpose of the guidance either to amend the Immigration Rules or even to restrict the number of IMGs seeking HSMP status or its renewal, though it was appreciated that this would be the likely effect. The purpose was, rather, a core employment purpose central to the Secretary of State for Health’s role, namely ensuring that the future need for healthcare professionals in the NHS, as modelled by her Department’s projections, would be met: see paras 20-21, 107-127 and 150-162 of Ms Deborah Mellor’s statement. The increase in training places for United Kingdom doctors meant that the supply of doctors to the NHS could be met from that source. IMGs were nonetheless attractive to NHS trusts at junior doctor levels, where they would displace United Kingdom doctors in training positions. United Kingdom doctors would then either leave the profession or go abroad. Further, statistics (Appendices 1 and 2 to Ms Mellor’s statement) showed that the “attrition” rate amongst IMGs was very high (although again not distinguishing between IMGs in categories (i) and (ii)): only about 25% of IMG senior house officers and 20% of IMG registrars were still in the NHS by the time they were expected to complete those respective grades, and only about 7% of IMGs were still in the NHS 10 years later. It was likely that there would be insufficient United Kingdom doctors to compensate for these losses.

54.  In these circumstances, the question is: what is it about the Secretary of State for Health’s guidance that is said to be illegitimate? It was informal and unsatisfactory in the way in which it was given. But it was given by the Secretary of State as part of her core role of over-seeing NHS employers and trusts and for a vital employment purpose. The Secretary of State originally hoped and wished to achieve similar protection for the NHS by the different route of amending the Immigration Rules and practice. But that in my opinion is neither here nor there. Her aim was always to protect and preserve the future work-force of the NHS. Restricting immigration would have been one way to achieve that employment aim. But if she had, otherwise, the power to achieve that employment aim by virtue of her supervisory responsibility for the NHS (and it is not suggested that she did not), the co-existence of power in the Crown to achieve similar effects in relation to NHS employment patterns by the different route of restricting immigration is as such irrelevant. Leaving aside the question whether it was right to embrace all three categories identified in the guidance and to do so without any transitional provisions, the employment route which she ultimately adopted can be said to have been more accurately targeted than a blanket amendment of the criteria for eligibility for, or of the conditions attaching to, HSMP status.

55.  Ultimately, Mr Singh’s submissions depend, as he accepts, on the fact that the employment guidance was targeted at persons with particular (HSMP) immigration status, together (for what it is worth) with the supporting factor that the criteria used for employment are criteria which in practice apply when deciding whether to grant a work permit to persons not having HSMP status. He accepts that it would have been legitimate for the Secretary of State to issue guidance limiting employment on other bases, for example by requiring particular academic qualifications. Indeed, it is not clear what ground of objection anyone could have had on Mr Singh’s case if the Secretary of State had decided that priority should be given to persons with HSMP status. The critical question is whether it was inconsistent with the scheme of the Immigration Act and Rules and the practice regarding the HSMP to introduce guidance which significantly and detrimentally affected the employment prospects of those with, or potentially able to obtain, HSMP status.

56.  Mr Singh acknowledged that he could not point to any case on all fours with the present. But he relied on two as pointing the way: R v Secretary of State for the Home Department, Ex p Fire Brigades Union [1995] 2 AC 513 and R (S) v Secretary of State for the Home Department [2006] INLR 575. The latter case does not appear to me to assist. The respondents, Afghan nationals, had successfully established that their removal back to their home state would violate their rights under the European Convention on Human Rights. The statutory scheme of immigration control postulated that someone in such a position would be entitled to leave to enter. The Secretary of State, to avoid appearing to refuse such leave, had instead said that it was “inappropriate to grant any leave” and that the respondents would be “placed on temporary admission or temporary release", a status reserved by paras 16 and 21 of Schedule 2 to the Immigration Act 1971 for only two categories of persons, into neither of which the respondents fitted (p 594). The case presents no real parallel with the present.

57.  The former Fire Brigades Union case is of greater potential relevance. The Criminal Justice Act 1988 provided for a statutory compensation scheme for the victims of violent crime, to replace the existing non-statutory scheme and to be brought into effect “on such day as the Secretary of State may … appoint” (section 171). Instead of appointing any day, the Secretary of State in 1993 announced that the existing non-statutory scheme would be replaced by a further non-statutory scheme, whereby awards would be made ex gratia according to a tariff fixed according to particular categories of injury.

58.  By a majority of three to two, the House held that the Secretary of State had acted unlawfully. Lord Browne-Wilkinson noted at p 553 that “an executive decision which affects the legitimate expectations of the applicant (even though it does not infringe his legal rights) is subject to judicial review", citing Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 408-410, per Lord Diplock, and that this was relevant both to the standing of a victim of crime to take proceedings for judicial review and to the legality of the Minister’s decision. He went on to say that, by introducing the tariff scheme, the Minister had given up his statutory duty to consider from time to time whether to bring the statutory scheme into operation and “debar[red] himself from exercising the statutory power for the purposes and on the basis that Parliament intended” (p 554). Lord Lloyd of Berwick said that it was clear that the tariff scheme was not an interim measure and regarded the Minister as having illegitimately renounced, surrendered, abdicated or relinquished his power to implement the statutory scheme, in a way which was either an abuse or an excess of power (pp 571e-g and 572a-d). Lord Nicholls of Birkenhead said that “any exercise of the prerogative power in an inconsistent manner, or for an inconsistent purpose, would be an abuse of power and subject to the remedies afforded by judicial review” (p 576). On the facts, he concluded at p 578 that the tariff scheme was “not intended as a temporary solution” and its introduction meant that “there is no expectation of ever bringing the statutory scheme into operation", and that the Secretary of State had effectively “disabled himself from properly discharging his statutory duty in the way Parliament intended", that is his statutory “duty to consider, in good faith, whether he should exercise the power” to bring the statutory scheme into operation (p 575).

59.  The emphasis in the Fire Brigade Unions case on legitimate expectation and abuse of power is in my opinion helpful in the resolution of the present case. Although no victim of crime had a right to have the statutory scheme introduced, the legitimate expectation existed in that case that the Secretary of State would perform his statutory duty, arising from the express provision that the 1988 Act was to be brought into force on such day as he appointed, to keep open and under review the introduction of the statutory scheme. There is in the present case no equivalent express provision in the Immigration Act or Rules from which any duty on the part of the Crown may be derived to keep open any particular employment. But the grant of HSMP status to IMGs within category (i) undoubtedly gave them a legitimate expectation that they would be able to seek and obtain employment in the fields of their skill; and that may in public law itself preclude the Crown from acting inconsistently with the expectation so created. That is underlined by an examination of the requirements to be met by someone seeking leave to enter and stay in the United Kingdom as a highly skilled migrant. These are set out in rules 135A-H of the Immigration Rules. An applicant seeking leave to enter must “intend … to make the United Kingdom his main home", and be “able to maintain and accommodate himself and any dependants adequately without recourse to public funds” (rule 135A), and may then be admitted for a period not exceeding 12 months (since April 2006, two years) (rule 135B). A person admitted on this basis may seek a three year extension of stay, provided s/he continues to meet those requirements, and shows that s/he “has already taken during his period of leave all reasonable steps to become lawfully economically active in the United Kingdom in employment, self-employment or a combination of both” (rule 135D). Indefinite leave to remain may be granted, on application, to a person currently with leave as a highly skilled migrant, provided, inter alia, that he has had a continuous period of at least four (since April 2006, five) years’ leave to enter or remain in the United Kingdom in that capacity and, for the period of leave as a highly skilled migrant, has met the requirements of rule 135A.

60.  For IMGs already in the United Kingdom with HSMP status (category (i)), the guidance would thus have undermined their legitimate expectations in a very fundamental way. They would have come here intending to make the United Kingdom their main home. Their decision to come would necessarily have taken account of the prospect of employment in the NHS. Prior to the guidance, the normal practice was for leave to stay with HSMP status to be renewed without difficulty, provided the requirements for renewal were met. Even if the attrition rate for IMGs with HSMP status was in practice high (something itself not clear from the statistics given in para 53 above), IMGs with that status would have expected to be able if they wished to stay here and be employed in the NHS until the time came when their leave could be made indefinite. The introduction of a resident labour market test for those whose limited leave expired before the end of the post on offer would radically undermine this expectation. That could have been done by amending the immigration scheme, which would at least have involved a measure of Parliamentary scrutiny. But, by issuing the guidance, the Secretary of State for Health as one emanation of the Crown was 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. In my opinion, the inconsistency and its effects were so profound as to render such guidance invalid.

61.  I move to the position regarding IMGs within categories (ii) and (iii). I take first category (iii), IMGs not within the United Kingdom at the time of the guidance and whose interests BAPIO does not appear strictly even to have been formed to protect. I cannot see what objection there could have been had the guidance been limited to IMGs within category (iii). The guidance was in its nature, as I have explained, employment guidance. Those without right of abode and without leave to enter and stay in the United Kingdom cannot be said to have any sort of protected immigration status in the United Kingdom; IMGs in that position had no legitimate expectation that the Immigration Act, Rules or practice would remain unchanged, and still less that any particular employment would be or would remain open to them in the United Kingdom in the future. On the contrary, the guidance, once issued, was a restriction on employment prospects which any IMG applying for HSMP status would have to take into account when seeking to establish that s/he would be “able to maintain and accommodate himself and any dependants adequately without recourse to public funds” (Immigration rule 135A). BAPIO itself has recognised the force of these points. In Dr Mehta’s second statement (para 10), he records that:

“It was and is common ground that something needed to be done to regulate the flow of IMGs into the United Kingdom. BAPIO’s primary concern with this issue was to address the hardships suffered by those who came over to take the PLAB [Professional and Linguistic Assessment Board test], only to find extreme difficulty in finding training posts thereafter".

Had the guidance been so limited, I would have had no difficulty in upholding it. As it is, the guidance drew no distinction between the various categories of IMGs.

62.  The position in relation to IMGs within category (ii), that is IMGs within the United Kingdom under the permit free training (PFT) scheme at the date of the guidance, is problematic. The only immigration status that they had was affected not by the guidance but by the changes to the Immigration Rules. If after such changes any such IMGs decided to apply for HSMP status, they too would have to take into account the restriction on employment prospects when seeking to establish that they would be “able to maintain and accommodate himself and any dependants adequately without recourse to public funds” (rule 135A). The extent to which, apart from such rule changes, they would ever have thought of applying for HSMP status, or would have regarded the possibility of obtaining such status as a long-stop, is far from clear. There are significant differences in the state of mind required to obtain PFT and HSMP status. An IMG with PFT status is required to leave the United Kingdom at the end of his or her training. An IMG in order to obtain HSMP status has to “intend … to make the United Kingdom his main home". Para 29 of the respondents’ case (to which I have referred in para 46 above) highlights this distinction between categories (i) and (ii), and goes on to say that

“Hence the analysis of the longevity of IMGs in the NHS may be a valid reason for changing the Immigration Rules to exclude overseas qualified IMGs from PFT, but not for the exclusion of IMGs on the HSMP from training posts".

There is no suggestion in this passage that all or any IMGs would, if validly excluded from PFT by a rule change, have a legitimate expectation of being able to obtain HSMP status; rather the contrary. Elsewhere in their case (eg paras 39 and 43) as well as in Mr Singh’s oral submissions, the respondents also concentrated their arguments on the position of those with HSMP status, ie within category (i). I am not convinced that IMGs with PFT can be said generically and without more to have any legitimate expectation that they would, if PFT was withdrawn, be able to obtain HSMP status.

63.  The guidance applied nonetheless to IMGs within all three categories without distinction or qualification. Whatever could legitimately have been done by way of more limited guidance, or by issuing general guidance subject to transitional provisions protecting those within category (i) who did have a legitimate expectation, the actual guidance issued did not do. In these circumstances, it is not in my opinion possible or appropriate for the court to try to rewrite or qualify the guidance or to seek to uphold it in part. It follows that I agree that the appeal should be dismissed, but that I do so by a different route to that taken by my noble and learned friend, Lord Bingham of Cornhill, in his opinion.


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