Bapio Action Ltd & Anor, R (on the application of) v Secretary of State for the Home Department & Anor

On 7 March 2006, Lord Warner, the Health Minister, announced changes to the Immigration Rules applying to foreign (by which I mean, in the present context, non UK or other EEA) postgraduate doctors and dentists. The new Rules were introduced before Parliament on 10 March and came into force on 3 April 2006. The object of the changes was to make it far more difficult for those doctors and dentists to obtain leave to enter or to remain in this country for the purposes of postgraduate training.

Shortly afterwards, the Department of Health (“DH”) gave advice to NHS employers which made it more difficult than previously for doctors on the Highly Skilled Migrant Programme (“HSMP”) to obtain appointments in the NHS.

Most of the doctors and dentists affected by the changes in the Immigration Rules and the DH advice are from the Indian sub-continent. For convenience, I shall refer to them as Indian, irrespective of whether their origin is India, or Pakistan, Bangladesh or Sri Lanka. The First Claimant was established by the British Association of Physicians of Indian Origin (BAPIO), which represents the interests of such doctors in this country. It is unnecessary to distinguish between the First Claimant and BAPIO in this judgment, and I shall refer to both as BAPIO. The Second Claimant was an overseas-qualified doctor who came to England in order to complete his post-graduate training; he had not obtained a post-graduate post and his ability to do so had been prejudiced by the governmental decisions referred to above.

In these proceedings, the Claimants seek judicial review of the decision to introduce those new Immigration Rules and of the DH guidance. They contend that the decision to change the Immigration Rules was unlawful by reason of the failure of the Government to consult them before making that decision; that the advice given by the DH is unlawful on the ground that it misrepresents the Immigration Rules or is an illegitimate attempt to vary them; and that in making its decision to change the Immigration Rules the Home Office failed to comply with the requirements of section 71 of the Race Relations Act 1976.

Some of the complaints made by the Claimants in their skeleton argument relate to the substance of the changes to the Immigration Rules and of the advice given by the DH. It is said that the changes to the previous position are unfair and discriminatory. In view of the publicity that these proceedings have received, it is important to emphasise that the legal grounds of the Claimants’ challenge to the changes in the Immigration Rules are procedural only: they relate to the failure of the Government to consult BAPIO before deciding to make the changes. It is of course implicit in the challenge that BAPIO objects to the substance of the changes, and thinks that if it had been consulted it would have persuaded the Government of their unfairness; but they have not suggested that that alleged substantive unfairness gives rise to a ground for judicial review.

Tragically, on 19 January 2006, while judgment was awaited, and before my conclusions were known, Dr Yousaf died, having taken his own life. I do not know whether his death was associated with his difficult situation, which I summarise later in this judgment. It appears that he had no relatives in this country. I can only express my condolences to his relatives in India. His death does not affect the First Claimant’s claims.

Medical training

As is well known, those who wish to practise as doctors are required to graduate from a medical school, and then to progress to postgraduate training, which involves working as a doctor. Until the so-called Calman reforms of the 1990s, there were four postgraduate training “grades”: pre-registration house officer (PRHO), senior house officer (SHO), registrar and senior registrar. A PRHO was not entitled to be fully registered with the GMC: graduates of UK medical schools were given provisional registration so that they could acquire the experience of medical practice required to obtain full registration. Doctors who completed their post-graduate training could, in due course, proceed to work as General Practitioners, or as consultants in their chosen specialty.

In 1993 a working group under the chairmanship of the then Chief Medical Officer Sir Kenneth Calman produced what is commonly called the Calman Report, entitled “Hospital Doctors: Training for the Future”, which led to fundamental changes in post-graduate medical training. It recommended the introduction of a Certificate of Completion of Specialist Training and the replacement of the then registrar and senior registrar grades. Subsequently, in 1996 and 1997, a new unified training grade was introduced, the Specialist Registrar (“SpR”) grade.

More recently, a two-year Foundation Programme has been introduced, to replace the old PRHO and the first year of the SHO grades. In addition, from August 2007 there will be Specialty Training Programmes, replacing the second and third years of the old SHO grade and the whole of the SpR grade. As a result, as from August 2007 a trainee doctor will ordinarily spend years 1 and 2 after medical school on the Foundation Programme and then, if he wishes to be a consultant, the following 5 to 10 years on a Specialty Training Programme, the length of which will depend on the specialty involved.

Training as a GP takes a minimum of 3 years after completion of PRHO training or the Foundation Programme. The 3 years normally consist of 2 years in a hospital and a year in a GP training practice as a GP registrar.

The immigration requirements imposed on IMGs

Until recently, there has been a shortage of British-trained doctors in the NHS. That shortage was alleviated by the large numbers of foreign, and mainly Indian, doctors who came to this country to train or to complete their training or simply to work. Foreign medical graduates are referred to as International Medical Graduates, or IMGs. (The evidence and skeleton arguments in this case are plagued by acronyms, and regrettably I see no alternative but to adopt them). The presence of IMGs in this country has been of enormous benefit to the NHS and its patients. For their part, the IMGs who came here to train or to work benefited from their medical experience in this country, and could apply their skills in their country of origin on their return; although of course some settled in this country permanently. If they did so, however, their education and skills were lost to their country of origin, where the need for qualified doctors was probably greater than here.

The GMC is the regulator of doctors practising in the UK. IMGs wishing to train here by working as a doctor must pass the GMC’s Professional and Linguistic Assessment Board (“PLAB”) tests. The object of these tests is to ensure that IMGs have the necessary medical and linguistic abilities for medical practice here. The test is in two parts. Part 1 can be taken either in this country or overseas, and costs £135. Part 2 must be taken in this country, and costs £430.

Until 1985, there were few restrictions on IMGs who wished to come to the UK to work or to train as doctors. If they did come here, and stayed for 4 years, they could acquire settled status, i.e. be given indefinite leave to remain. The position was changed with effect from 1 April 1985, when the Immigration Rules were amended to introduce what came to be called Permit-Free Training (PFT). IMGs who satisfied 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. They were required to have the intention to leave this country at the end of their training, with a maximum period of stay of 4 years; and their time in the UK on PFT did not count towards the acquisition of settled status. PFT was not available for doctors who wished to work rather than to train, or who wished to come to this country in order to settle permanently. These changes in the Immigration Rules were announced on the day they were laid before Parliament, on 26 March 1985, 4 days before they came into effect.

At some time before June 1994, the Immigration Rules were amended to exclude IMG PRHOs (i.e., doctors in their first year of postgraduate medical training) who had not graduated from a UK medical school. Doctors who were able to work as a SHO were not affected by this change, which was confirmed in the consolidation of the Immigration Rules in May 1994. In addition, an aggregate limit of 12 months was placed on the leave to enter or extension of stay that might be granted to a doctor seeking to undertake postgraduate medical training as a PRHO.

In January 1994, the PFT scheme was modified by extra-statutory concession. There were concerns that doctors here under the PFT scheme were switching to employment under a work permit in order to prolong their stay. IMGs on PFT were permitted to seek exceptional extensions to the maximum period of 4 years if this was justified by their training needs. These arrangements were said to be interim arrangements.

On 1 April 1997, changes in the Immigration Rules applicable to IMGs were made. The requirement that a doctor seeking training as a PRHO had to be a graduate of a UK medical school was relaxed: it became sufficient that he was a graduate of a medical school, although he had to be eligible for provisional or limited registration with the GMC. The IMG had to show that he would be able to maintain himself without recourse to public funds. If he sought an extension of his stay, he had to show evidence of satisfactory progress in his postgraduate training; and the restriction on the total length of stay was relaxed so that it only applied to prevent a doctor (other than one intending to undertake postgraduate training as a PRHO) spending more than 4 years in aggregate in SHO or similar positions.

In December 2002, the Immigration Rules were changed so as to include trainee general practitioners within the scheme of PFT.

Until March 2005, leave to enter had been granted to IMGs wishing to take the PLAB test by way of extra-statutory concession. In that month, provisions were inserted in the Immigration Rules entitling a doctor wishing to take the PLAB test here to leave to enter, subject to a requirement that he intended to leave on expiry of his leave unless he passed the test and was granted leave to remain in another category. The initial period of grant of leave was to be for a maximum of 6 months, with a maximum aggregate period of 18 months.

In August 2005, further changes were made to the Immigration Rules. The principal changes were as follows:

The reasons for the changes

The decisions which are the subject of these proceedings arise from the increase in the numbers graduating from UK medical schools. Between 2001 and 2004, 4 new medical schools were established in England. Since 1997, there has been a 56 per cent increase in UK medical school intake. If the numbers of IMGs training here continued at previous levels, significant numbers of UK medical graduates would be unable to complete their training. The investment in their education would, so far as this country is concerned, be wasted. There were additional reasons for the decisions, referred to in the witness statement of Deborah Mellor, the Head of Workforce Capacity in the Workforce Directorate of the DH, but since it is not suggested that they were inadequate or unlawful it is unnecessary to set them out in this judgment.

Before describing the changes made in April 2006, it is necessary to mention some general matters.

First, as appears above, the principal means for a foreign medical graduate to train here is through the application of PFT. PFT is not intended for those wishing to settle here permanently: it is restricted to those who intend to return to their home country after completing their training here. There are other routes that may be applicable to foreign medical graduates for obtaining leave to enter. Of these, the most important is the Highly Skilled Migrant Programme (“HSMP”). As the name suggests, it is intended for those who do wish to settle here permanently. The criteria for HSMP are such that most doctors (both at trainee and specialist levels) qualify for acceptance onto the scheme.

Lastly, a work permit may be obtained if an employer is able to satisfy the so-called resident labour market test: i.e., to show that the vacancy in question cannot be filled by an appropriately qualified UK or EEA national.

The effect of the changes made to the Immigration Rules taking effect from 3 April 2006 is that only a graduate of a UK medical school is entitled to benefit from PFT, and then only for the purposes of undertaking a Foundation Programme and for an initial period of 26 months (with the possibility of an extension to a maximum of 3 years). Graduates from UK dental schools are not eligible for PFT. Thus, for graduates of foreign medical schools, PFT is no longer available.

However, these changes were accompanied by concessions included in the Immigration Directorate’s Instructions on postgraduate doctors and dentists which gave transitional relief. In summary:

The general effect of the changes to the Immigration Rules and the transitional provisions was helpfully set out in a schedule, produced by Mr Moffett and commented upon by the Claimants, which is appended to my judgment.

According to Ms Mellor: “The intention behind the transitional provisions was that an IMG who was already in a training position would ordinarily be able to complete that position.”

The changes in the Immigration Rules did not affect other means of obtaining leave to enter this country, and in particular the HSMP. The DH considered that if entry of IMGs was to be reduced, restrictions on their entering under the HSMP would also have to be introduced. According to Ms Mellor, the Home Office was reluctant to embark on a revision of the rules relating to HSMP. The DH therefore sought to achieve its object by issuing the guidance which is the subject of these proceedings. In addition, on 7 March 2006 the Home Office announced that the HSMP was to be replaced by a points-based system. It was, according to Ms Mellor, unclear what the effect of the new system would be on IMGs who had received leave to enter under the HSMP for a period shorter than their training period: i.e., whether a work permit would be required if their leave was to be extended, with a requirement that their employers at that stage satisfy the resident market labour test. Whether this was a case of the right hand of government not knowing what the left hand had decided, or of a lack of decision on the part of the Home Office, is unclear.

The DH guidance was published on 13 April 2006. It was to the effect that IMGs whose leave extended beyond the period of a post on offer should be considered for it in the same way as a UK or other EEA national; but that those with limited leave that would expire before the end of the post on offer, unless they had been granted asylum, should only be offered the post if the resident market labour test is satisfied.

The majority of IMGs who apply for training under the GP Vocational Training Scheme (“GPVTS”) do not have HSMP permits for the 3 or 4 years of training involved. On the basis of the guidance, IMGs in this situation would not be allowed to progress their applications. IMGs with limited leave would similarly be unable to apply for hospital training posts with a duration extending beyond the period of their leave.

Pending the determination of these proceedings, postgraduate deans are offering positions to IMGs on the same basis as they treat UK or other EEA doctors.

The situation of the Second Claimant at the dates of the hearing of these proceedings may be taken as representative of the situation others for the benefit of whom these proceedings have been brought. He obtained his primary medical qualification in Pakistan. He then worked there as a junior doctor for 2 years. He came to the UK in 2004 with the intention of continuing his postgraduate medical training. He took and passed part 1 of the PLAB in Pakistan, and then came here and took and passed part 2. The fees for the PLAB tests together with the costs of a visa and of travel to the UK amount to a very considerable commitment for someone from Pakistan. However, he had not succeeded in obtaining a post before the change in the Immigration Rules was announced in March 2006. As a result, he had incurred substantial debts during his period here. He could no longer remain under PFT. The transitional arrangements did not apply to him. He would not have been able to obtain a position under the HSMP. He said that if he had known that PFT was under threat, he would not have come to the UK or remained here.

Generally, the Claimants complain that because of the failure to consult, IMGs have taken the PLAB and incurred expense and devoted their time and resources in seeking to obtain a training post here for no purpose. Those who are here under the HSMP will be unable to obtain a post or an extension of their current post if their leave is for a period less than that of the post or extension in question. They say that the consequences for IMGs who are not able to take advantage of the transitional concessions are unfair.

The Claimants’ case is that the Home Office was under a duty to consult BAPIO before making the changes to the Immigration Rules that are the subject of these proceedings. Had BAPIO been consulted, they might have been able to persuade the Home Office to introduce changes that did not operate unfairly, or did not operate as unfairly as those in fact made.

The Defendants deny that they were under a duty to consult. If they would otherwise have been under such a duty, they say that the circumstances of this case excluded the obligation, since consultation would have defeated the purpose of the changes. In any event, they say, they did consult. I have some difficulty with the consistency of their case that consultation was impractical and inappropriate and their case that they did in fact consult, but that is as may be. The Defendants do not dispute that if there was an obligation to consult representatives of IMGs, BAPIO would have been an appropriate consultee.

In order to address this challenge to the lawfulness of the Home Office’s decision, it is necessary to consider the nature of the Immigration Rules and the basis for the alleged obligation to consult.

The Immigration Rules are the subject of section 3(2) of the Immigration Act 1971. Sections 1 and 3 are, so far as is material, as follows:

1.

General principles

(1)

All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person.

(2)

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 into, stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain).

(3)

…

(4)

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.

3.

General provisions for regulation and control

(1)

Except as otherwise provided by or under this Act, where a person is not a British citizen

(a)

he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act;

(b)

he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;

(c)

if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely—

(i)

a condition restricting his employment or occupation in the United Kingdom;

(ii)

a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds; and

(iii)

a condition requiring him to register with the police.

(2)

The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him 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 required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4)(and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality).

If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid).

As can be seen, the Immigration Rules are not law in the narrow sense. As Lord Denning MR said in R v Home Secretary, ex p Hosenball [1977] 1 WLR 766, 781, “they are not rules in the nature of delegated legislation so as to amount to strict rules of law”. See too Geoffrey Lane LJ at 785C-786C. In Pearson v IAT [1978] Imm AR 212, following Hosenball, the Immigration Rules were described by the Court of Appeal as rules of practice laid down for the guidance of those entrusted with the administration of the immigration legislation and having the force of law for those hearing immigration appeals. Nonetheless, they are included in law in section 86(3) of the Nationality, Immigration and Asylum Act 2002.

Thus the Immigration Rules are rules laid down as to the practice to be followed in the administration of the Act. It is unhelpful to refer to them as quasi-legislation, or quasi-delegated legislation, but the generality of their application, and the fact that they are rules to be complied with give them some of the qualities of law. It is because of the nature of the Immigration Rules, and the fact that they are the subject of Parliamentary scrutiny, and may be disapproved by resolution of either House, that Mr Rabinder Singh sensibly disclaims any challenge to the content of their provisions. He helpfully referred me to the speech of Lord Scarman in Notts County Council v Secretary of State for the Environment [1986] AC 240. That case concerned the statutory power of the Secretary of State to give guidance setting local authority expenditure targets. The report containing that guidance was laid before the House of Commons and approved by resolution of the House. The local authority contended that the guidance was unreasonable and therefore unlawful. The House of Lords rejected its claim for judicial review. Lord Scarman said, at 250:

The present case raises in acute form the constitutional problem of the separation of powers between Parliament, the executive, and the courts. In this case, Parliament has enacted that an executive power is not to be exercised save with the consent and approval of one of its Houses. It is true that the framing of the guidance is for the Secretary of State alone after consultation with local authorities; but he cannot act on the guidance so as to discriminate between local authorities without reporting to, and obtaining the approval of, the House of Commons. That House has, therefore, a role and a responsibility not only at the legislative stage when the Act was passed but in the action to be taken by the Secretary of State in the exercise of the power conferred upon him by the legislation.

To sum it up, the levels of public expenditure and the incidence and distribution of taxation are matters for Parliament, and, within Parliament, especially for the House of Commons. If Parliament legislates, the courts have their interpretative role: they must, if called upon to do so, construe the statute. If a minister exercises a power conferred on him by the legislation, the courts can investigate whether he has abused his power. But if, as in this case, effect cannot be given to the Secretary of State's determination without the consent of the House of Commons and the House of Commons has consented, it is not open to the courts to intervene unless the minister and the House must have misconstrued the statute or the minister has - to put it bluntly - deceived the House. The courts can properly rule that a minister has acted unlawfully if he has erred in law as to the limits of his power even when his action has the approval of the House of Commons, itself acting not legislatively but within the limits set by a statute. But, if a statute, as in this case, requires the House of Commons to approve a minister's decision before he can lawfully enforce it, and if the action proposed complies with the terms of the statute (as your Lordships, I understand, are convinced that it does in the present case), it is not for the judges to say that the action has such unreasonable consequences that the guidance upon which the action is based and of which the House of Commons had notice was perverse and must be set aside. For that is a question of policy for the minister and the Commons, unless there has been bad faith or misconduct by the minister. Where Parliament has legislated that the action to be taken by the Secretary of State must, before it is taken, be approved by the House of Commons, it is no part of the judges’ role to declare that the action proposed is unfair, unless it constitutes an abuse of power in the sense which I have explained; for Parliament has enacted that one of its Houses is responsible. Judicial review is a great weapon in the hands of the judges: but the judges must observe the constitutional limits set by our parliamentary system upon their exercise of this beneficent power.

In other words, generally speaking, when the exercise of a power of a Minister is subject to scrutiny by Parliament, it is not for the Courts to subject the Minister’s decision to the test of reasonableness or otherwise to impugn the substance of the decision. Nonetheless, it has been held that the Immigration Rules may be impugned if they are “manifestly unjust or in any other such extreme fashion unreasonable”: see Simon Brown J in R v Immigration Appeal Tribunal ex parte Begum [1986] Imm AR 385, 394. The Claimants do not seek to challenge the changes to the Immigration Rules on this basis. Given the concessions that accompanied the change to the Immigration Rules, and the obvious need for a change, for the reasons set out in the evidence of Ms Mellor, that is a sensible approach: I doubt whether they could have satisfied the difficult requirements of such a challenge.

Mr Rabinder Singh contended, however, that the decision may be subject to challenge on procedural grounds, which is the basis of the Claimant’s case in relation to the change in the Immigration Rules. That his submission is well founded is demonstrated by the decision of the Divisional Court in R v Secretary of State for Health, ex parte United States Tobacco [1992] 1 QB 353, where, however, the duty to consult was expressly imposed by the legislation in question.

The Minister’s power considered in Notts County Council v Secretary of State for the Environment required the affirmative resolution of the House of Commons, whereas in the present case it was subject to a negative resolution of either House. That difference does not, however, affect the principle enunciated by Lord Scarman. It is implicit in the restriction of the Claimants’ case to a procedural challenge that the fact that the Immigration Rules are not financial measures equally does not affect the application of the principle.

The practical relevance in the present case of the considerations to which Lord Scarman referred is emphasised by the fact that BAPIO and its members approached their MPs (or the MPs for the constituencies in which they lived), pointing out the alleged unfairness of the changes, and among other things they submitted written evidence to the Parliamentary Select Committee on Health. BAPIO had the opportunity to inform Parliament of the lack of consultation, and doubtless did so. Nonetheless, no negative resolution was passed by either House of Parliament.

The effect of the change in the Immigration Rules is nonetheless relevant. If there were no significant prejudice to individuals, it is difficult to see a basis for an argument that they, or an organisation representing them, should have been consulted. I accept, and I do not think it is disputed, that the measures which are the subject of these proceedings have caused and will cause prejudice to members of BAPIO, and by way of example deprive Dr Yousaf of the possibility of his obtaining a training post under PFT. But it seems to me that the obligation to consult cannot be based on an allegation that the change is unfair: for the Court to castigate it as unfair would be inconsistent with the principle enunciated by Lord Scarman, and would lead to the decision being impugned indirectly (by reason of a failure to consult) on account of its alleged unfairness. I add, however, that it is evident from the transitional concessionary provisions summarised in the appendix to this judgment that the DH and the Home Office were concerned to avoid unfair prejudice to IMGs. A change such as that announced on 7 March 2006 is bound to prejudice some individuals. The transitional concessions were intended to permit an IMG who was already in a training post, or who had been offered a training post that was due to start at the beginning of the next rotation round, i.e., on 4 August 2006, to complete that post. As I indicated above, I doubt that the transitional concessions could be said to result in unreasonable or unfair prejudice, and in particular I doubt that they could be said to be so conspicuously or egregiously unfair as to amount to an abuse of power.

There are numerous statutes that expressly impose on an executive authority an obligation to consult before exercising a statutory power: see, e.g., section 29 of the Food Standards Act 1999, section 33(7) of the Railways Act 2005, paragraph 2(6) of Schedule 3 to that Act, section 36(1) of the Housing Benefits Act 1982, considered by Webster J in R v Secretary of State for Social Services, ex parte Association of Metropolitan Authorities [1986] 1 WLR 1, and section 11 of the Consumer Protection Act 1987, considered by the Divisional Court in R v Secretary of State for Health, ex parte United States Tobacco. Parliament has not imposed such an obligation on the Home Secretary in relation to the Immigration Rules. The question therefore arises whether, consistently with the principle of the separation of powers, the Court can properly impose an obligation to consult where Parliament has not done so.

The judgment of Megarry J in Bates v Lord Hailsham [1972] 1 WLR 1373 is authority for the proposition that where delegated legislation is concerned, the Court cannot impose an obligation to consult where Parliament has refrained from doing so. That case concerned a challenge to an order made by a committee established by the Solicitors Act concerning solicitors’ remuneration. The plaintiff was represented by Mr Donald Nicholls, as he then was. He submitted that there had been an unlawful failure to consult representative bodies of solicitors on a proposed order. Megarry J rejected the claim for injunctive relief. He said, at 1378:

In the present case, the committee in question has an entirely different function: it is legislative rather than administrative or executive. The function of the committee is to make or refuse to make a legislative instrument under delegated powers. The order, when made, will lay down the remuneration for solicitors generally; and the terms of the order will have to be considered and construed and applied in numberless cases in the future. Let me accept that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness. Nevertheless, these considerations do not seem to me to affect the process of legislation, whether primary or delegated. Many of those affected by delegated legislation, and affected very substantially, are never consulted in the process of enacting that legislation; and yet they have no remedy. Of course, the informal consultation of representative bodies by the legislative authority is a commonplace; but although a few statutes have specifically provided for a general process of publishing draft delegated legislation and considering objections (see, for example, the Factories Act 1961, Schedule 4), I do not know of any implied right to be consulted or make objections, or any principle upon which the courts may enjoin the legislative process at the suit of those who contend that insufficient time for consultation and consideration has been given. I accept that the fact that the order will take the form of a statutory instrument does not per se make it immune from attack, whether by injunction or otherwise; but what is important is not its form but its nature, which is plainly legislative.

In the field of administrative law, the nearly 35 years since that judgment are a very long time indeed. It appears that the judgment has not been expressly followed. However, no case has been cited to me in which delegated legislation or any other statutory measure the subject to Parliamentary scrutiny which was not the subject of an express statutory duty to consult has been struck down or otherwise successfully impugned on the ground of a failure to consult. It is not clear to me that the principle enunciated by Megarry J is not still good law, at least as far as the present case is concerned. The Immigration Rules are sufficiently akin to delegated legislation for his dicta to be relevant. It is obvious that any change in the Immigration Rules that makes the conditions for entry into the UK more restrictive will affect individuals, yet Parliament has not required the Home Secretary to consult either individuals or associations that represent those affected by such changes. Moreover, even if there has been no consultation, or the representations of consultees have been rejected by the Minister, those affected may present representations to Parliament which at least in theory may reject the Minister’s decision. In other words, the remedy is political rather than judicial.

On any basis, however, a duty to consult, if not expressly or impliedly imposed by the legislation (and it is not suggested that there is any obligation necessarily implied), must be based on special circumstances. One of those circumstances may be an established practice of prior consultation. In the GCHQ case, CCSU v Minister for the Civil Service [1985] AC 374, Lord Fraser of Tulleybelton put it as follows:

But even where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and, if so, the courts will protect his expectation by judicial review as a matter of public law. This subject has been fully explained by my noble and learned friend, Lord Diplock, in O'Reilly v. Mackman [1983] 2 A.C. 237 and I need not repeat what he has so recently said. Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue. Examples of the former type of expectation are Reg. v. Liverpool Corporation, Ex parte Liverpool Taxi Fleet Operators' Association [1972] 2 Q.B. 299 and Attorney-General of Hong Kong v. Ng Yuen Shiu [1983] 2 A.C. 629. (I agree with Lord Diplock's view, expressed in the speech in this appeal, that "legitimate" is to be preferred to "reasonable" in this context. I was responsible for using the word "reasonable" for the reason explained in Ng Yuen Shiu, but it was intended only to be exegetical of "legitimate".) An example of the latter is Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain [1979] Q.B. 425 approved by this House in O'Reilly, at p. 274D. The submission on behalf of the appellants is that the present case is of the latter type. The test of that is whether the practice of prior consultation of the staff on significant changes in their conditions of service was so well established by 1983 that it would be unfair or inconsistent with good administration for the Government to depart from the practice in this case. Legitimate expectations such as are now under consideration will always relate to a benefit or privilege to which the claimant has no right in private law, and it may even be to one which conflicts with his private law rights. In the present case the evidence shows that, ever since GCHQ began in 1947, prior consultation has been the invariable rule when conditions of service were to be significantly altered. Accordingly in my opinion if there had been no question of national security involved, the appellants would have had a legitimate expectation that the minister would consult them before issuing the instruction of 22 December 1983.

See too the speech of Lord Diplock at 408F.

Mr Rabinder Singh referred me to the judgment of Simon Brown LJ in R v Devon County Council ex p Baker [1995] 1 All ER 73, in which he identified four broad categories of legitimate expectation. He submitted that the Claimant’s case falls within categories 2 and, if it was necessary to rely on it, 4. Simon Brown’s statement as to those categories were as follows:

(2)

Perhaps more conventionally the concept of legitimate expectation is used to refer to the claimant's interest in some ultimate benefit which he hopes to retain (or, some would argue, attain). Here, therefore, it is the interest itself rather than the benefit that is the substance of the expectation. In other words the expectation arises not because the claimant asserts any specific right to a benefit but rather because his interest in it is one that the law holds protected by the requirements of procedural fairness; the law recognises that the interest cannot properly be withdrawn (or denied) without the claimant being given an opportunity to comment and without the authority communicating rational grounds for any adverse decision. Of the various authorities drawn to our attention, Schmidt v Secretary of State for Home Affairs [1969] 1 All ER 904, [1969] 2 Ch 149, O'Reilly v Mackman [1982] 3 All ER 1124, [1983] 2 AC 237 and the recent decision of Roch J in R v Rochdale Metropolitan BC, ex p S [1993] 1 FCR 306 are clear examples of this head of legitimate expectation.

(3)

…

(4)

The final category of legitimate expectation encompasses those cases in which it is held that a particular procedure, not otherwise required by law in the protection of an interest, must be followed consequent upon some specific promise or practice. Fairness requires that the public authority be held to it. The authority is bound by its assurance, whether expressly given by way of a promise or implied by way of established practice. Re Liverpool Taxi Owners' Association [1972] 2 All ER 589, [1972] 2 QB 299 and A-G of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346, [1983] 2 AC 629 are illustrations of the court giving effect to legitimate expectations based upon express promises; Council of Civil Service Unions v Minister for the Civil Service an illustration of a legitimate expectation founded upon practice albeit one denied on the facts by virtue of the national security implications.

I have to admit to some puzzlement as to the citation of Schmidt v Secretary of State for Home Affairs. The plaintiffs were foreign Scientology students. They had been given permission to enter and to stay in this country for a limited period. They applied for extensions of the periods of their permits, contending that they required them in order to obtain qualifications. The Home Secretary refused to extend their leave to stay in this country. They contended, among other things, that the Home Secretary was bound to give them a hearing before refusing to extend their permits. The Court of Appeal agreed that the Home Secretary was under no such obligation. Lord Denning MR said, at 171:

If [a foreign alien’s] permit is revoked before the time limit expires, he ought, I think, to be given an opportunity of making representations: for he would have a legitimate expectation of being allowed to stay for the permitted time. Except in such a case, a foreign alien has no right - and, I would add, no legitimate expectation - of being allowed to stay. He can be refused without reasons given and without a hearing. Once his time has expired, he has to go.

Simon Brown LJ’s reference to O'Reilly v Mackman is equally puzzling: claim in that case was struck out as an abuse of the process.

Existing leaves to remain were unaffected by the change in the Immigration Rules. It follows that Schmidt is inconsistent with the contention that those representing IMGs such as Dr Yousaf, who had no training post or offer of one, were entitled to be consulted before the change in the Immigration Rules was made, essentially because, as Mr Moffett submitted, their interest in the previous rules continuing was too indefinite or speculative. The Rochdale case is of greater assistance. It was a case of an administrative decision to withdraw the payment of travelling expenses for children going to school having been made without any consultation of the parents. In my judgment, it does not apply in the different and more legislative context of a change to the Immigration Rules.

Simon Brown LJ’s fourth category is also unpromising from the Claimants’ point of view. It is not suggested that there was any express promise that BAPIO would be consulted. It follows that the Claimants must identify a practice of consultation sufficiently settled or uniform as to give rise to an expectation, and an obligation, that they would continue to be consulted. In this connection, I note that in R v Falmouth Port Health Authority, ex parte South West Water Ltd [2001] QB 445, Simon Brown LJ said, at 459c, that “only the clearest of assurances can give rise to [the] legitimate expectation [of consultation]”. It is obvious that the acts relied upon by the Claimants must be those of or authorised by the Government (as to which see R (Bloggs) v Home Secretary [2003] 1 WLR 2724 at [41]). Thus the conduct of the BMA or the GMC referred to in the Claimants’ evidence, in permitting increased numbers of IMGs to take the PLAB, for example, is immaterial for this purpose.

The evidence of Ms Mellor shows that there has not been such a practice. Neither BAPIO (if it then existed) nor the Overseas Doctors’ Association (which did) was consulted in 1985. In 1993, a formal consultation on the control of the immigration status of IMGs was launched, but interim provisions were put in place, outside the Immigration Rules, without consultation: see the DH letter of 22 September 1993. Those interim provisions were extended in April 1994 “pending final decisions on the responses to the consultation exercise”. That consultation did not lead to any changes in the Immigration Rules or the interim provisions: it was overtaken by the Calman reforms. The May 1994 consolidation of the Immigration Rules and the provisions governing PFT, and any change then in the Immigration Rules, were not preceded by consultation. Similarly, there was no consultation in 1997 on the specific changes to the Immigration Rules then made, although there was consultation on the revised guidance relating to those changes. There was no consultation on the minor changes made in December 2002. The changes to the Immigration Rules made in March 2005 were preceded by consultation with the BMA, the GMC, the General Dental Council, but not with BAPIO. Those bodies, and the Conference of Postgraduate Medical Deans (CoPMED) and the Committee of General Practice Education Directors were consulted by the Home Office in relation to the amendments to the Immigration Rules made in August 2005, but BAPIO was not. CoPMED has an Overseas Doctors Sub-Group: whether it was consulted internally by CoPMED does not appear.

I conclude that there has been no consistent practice of consultation such as could have created an obligation to consult BAPIO before making the changes to the Immigration Rules in April 2006.

In his evidence, Dr Ramesh Mehta, the President of BAPIO, refers to communications with the DH in late 2005 that gave the impression that there was to be no imminent change in the Immigration Rules relating to IMGs. The letter from the Minister of State at the Home Office, dated 27 October 2005, in response to Doctor Mehta’s letter of 13 October 2005, responded to issues raised by BAPIO concerning the then provisions relating to IMGs, and gave no hint of impending change. Dr Mehta and BAPIO would reasonably have assumed that there would be no significant change. The Minister’s letter referred to guidance to be published by CoPMED, which it was hoped would be published at the end of the month. That impression would have been reinforced by CoPMED’s consultation on that guidance, effected by letter dated 17 November 2005, on which BAPIO was a consultee. In the event, that guidance did not become operational until 1 February 2006, having been published shortly before. It was endorsed by the DH and the Home Office. Its publication would have reinforced the impression that no significant change was pending.

In these circumstances if nothing else relevant had occurred, the Ministerial statement of 7 March 2006 would have caused considerable surprise and raised questions of unfairness. However, the unfairness would not, in my judgment, have related to the lack of consultation as much as to the lack of warning of the impending changes. In any event, however, some warning was given. On 10 November 2005, there was a meeting of the CoPMED overseas sub-group at which the need to manage PFT in the short term was discussed. More important was the meeting of 18 January 2006 organised by NHS employers at which BAPIO (in the person of Dr Mehta), among others, were represented. According to Dr Mehta, there was no discussion of the imminent abolition of PFT. However, Ms Mellor’s evidence is that she outlined the proposals to restrict PFT, that she outlined the current position with regard to increased IMG entry over the last few years and its adverse impact on unemployment for IMGs in this country, and that she said that it was sensible to review the then current immigration arrangements for doctors and to restrict PFT. She says that there was a subsequent question and answer session, and that the general view was that the sooner PFT was restricted the better. Ms Mellor’s evidence is supported by the text of the slide she used for her presentation, which includes the phrases “Protect resident medical labour market” and “PFT – UK medical grads only”, and by the notes of the meeting, which record:

The Department of Health then provided a brief outline of new proposals to cease permit-fee training for doctors and apply general Home Office migration rules on skill shortages, i.e. only recruit internationally when posts can’t be filled through domestic supply.

… IMGs …

The end of permit-free training and suspension of the PLAB would at least ensure the situation isn’t made worse as we’re now over producing doctors domestically.

It should have been apparent to those at the meeting, including Dr Mehta, that the Government proposed to end PFT. It is not suggested that anyone asked whether the proposals would be the subject of formal consultation. It was not made known just how imminent were these changes, but it was made known that there were to be, and indeed needed to be, changes such as those announced on 7 March 2006. In these circumstances, I see no unfairness in the circumstances of the announcement.

The Defendants’ case is that if, contrary to their primary case, they would otherwise have been subject to a duty to consult BAPIO, they were excused from consulting them because of the risk of precipitating a large number of applications by IMGs for PFT before it was withdrawn. Given what was said at the meeting of 18 January 2006, which in my judgment should have alerted BAPIO to the forthcoming changes, this part of their case is not without difficulty. However, I think that the Court must be cautious before concluding that the views of the Home Office and the DH, summarised in paragraphs 128 to 130 of Ms Mellor’s witness statement, were unfounded. I do see the risk that a formal and publicised consultation would have led to IMGs seeking PFT before they would otherwise have done so. Accordingly, I conclude that if there would otherwise have been a duty to consult, it was inapplicable for good administrative reasons.

If, however, contrary to my conclusion, there was a duty to consult BAPIO, the duty was not complied with. The classic statement of the requirements of consultation is that formulated by Mr Stephen Sedley QC, as he then was, in argument, and adopted by Hodgson J in his judgment, in R v Brent London Borough council ex parte Gunning (1985) 84 LGR 168, and approved by Webster J in R v Sutton London Borough Council ex parte Hamlet (unreported, save in the Encyclopaedia of Education Law), namely:

First…consultation must be at a time when proposals are still at a formative stage. Secondly…the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Thirdly…adequate time must be given for consideration and response and, finally, fourthly…the product of consultation must be conscientiously taken into account in finalising any…proposals.

It is obvious that the meeting of 18 January 2006 did not satisfy these requirements. Only an outline of the proposals was given, and there was no request, and no opportunity, for those present to take soundings from the members of the organisations they represented and to communicate the results of those soundings to the Government. Mr Moffett rightly conceded that the meeting did not constitute a consultation exercise.

The DH Guidance is challenged on the following grounds:

In my judgment, these grounds are unfounded. The guidance is not alleged to constitute unlawful discrimination under the Race Relations Act 1976. The guidance did not purport to represent the effect of the Immigration Rules. It was guidance given to employers by a government department responsible for their functions. It did not affect private hospitals, so that an IMG who qualifies under the HSMP may obtain employment there. If the guidance affected immigration law or practice, it would restrict the leave that might be obtained by an IMG who is offered a post in a private medical establishment; but it does not.

Section 71(1) of the Race Relations Act 1976, as amended, is as follows:

(1)

Every body or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need—

(a)

to eliminate unlawful racial discrimination; and

(b)

to promote equality of opportunity and good relations between persons of different racial groups.

Both the Home Office and the DH are subject to the duty imposed by this provision. The Claimants claimed in their claim form that the Home Office had failed to comply with this duty. They intended, I think, to make the same allegation against the DH, but that was not made clear by them. The Defendants did not understand that allegation to have been made against the DH, which did not address it in its evidence. In these circumstances, the Claimants did not pursue this ground of challenge against the DH.

In Secretary of State for Defence v Elias [2006] EWCA Civ 1293, Arden LJ said:

It is the clear purpose of section 71 to require public bodies to whom that provision applies to give advance consideration to issues of race discrimination before making any policy decision that may be affected by them. This is a salutary requirement, and this provision must be seen as an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation. It is not possible to take the view that the Secretary of State's non-compliance with that provision was not a very important matter. In the context of the wider objectives of anti-discrimination legislation, section 71 has a significant role to play. I express the hope that those in government will note this point for the future.

The evidence relied upon by the Home Office as establishing compliance with the statutory duty is contained in the witness statement of James Quinault of the Immigration and Nationality Directorate. In paragraph 10 of his witness statement he said:

“I also understand that the Claimants are asserting that the Home Office failed to assess any impact on racial equality prior to introducing the relevant changes to the Immigration Rules in April 2006. This is not the case. The relevant issues were examined and discussed before the changes were laid before Parliament. It was concluded that the proposed change to the rules was compliant with the Home Office’s general duty to promote good race relations between persons of different racial groups and to avoid unlawful racial discrimination. It is accepted that a formal race equality impact assessment ought to have been made available before the rules change took place in compliance with the Immigration and Nationality Directorate Associate Race Equality Scheme [JQ1, pp 13-56]. One has since been made available. It was sent to the Commission for Racial Equality on 4 July 2006 [JQ1, pp 57-61]. The race equality impact assessment accurately summarises the discussions and considerations that were taken into account when assessing the potential impact of the rules change on the avoidance of unlawful racial discrimination and on good race relations.”

This statement is short on detail: who examined and discussed the issues, when and what was the substance or effect of the discussion. He refers to an examination and discussion of the issues before the changes were laid before Parliament, but not before the decision to make the changes was made or announced. In the letter from Lin Homer of the IND to the Commission for Racial Equality dated 4 July 2006 enclosing the Race Equality Impact Assessment, referred to by Mr Quinault, Ms Homer stated:

I acknowledge that the Assessment ought to have been completed before the rules change took place, and we will take steps to seek to ensure that Assessments are made in a timely manner in future.

The letter makes no reference to any informal assessment having been made before the rules change was announced or took place. It was because of this apparent contradiction that I directed the Home Office to put in evidence any note or memorandum and any further details of the informal assessment to which Mr Quinault referred. By letter dated 15 December 2006, the Treasury Solicitor informed the Court that:

The Home Department has conducted a comprehensive review of its files relating to this matter, and the Home Office officials who examined and discussed the relevant issues have reviewed their own papers and electronic records (including emails). The Home Department has confirmed that no record or document can be located of these discussions and examinations.

The evidence presented in paragraph 10 of the witness statement of Mr James Quinault therefore represents the extent to which the Secretary of State for the Home Department can assist the Court in this matter.

If there had been a significant examination of the race relations issues involved in the change to the Immigration Rules, there would have been a written record of it. In my judgment, the evidence before me does not establish that the duty imposed by section 71 was complied with.

The Claimants have not established that the change in the Immigration Rules announced on 7 March 2006 or the guidance given by the DH was unlawful. Their third ground of challenge succeeds. It does not however justify the quashing of the rules change. In any event, there was a subsequent Race Equality Impact Assessment the sufficiency of which has not been challenged. In these circumstances there will be a declaration that the Secretary of State for the Home Department failed to comply with his duty under section 71 of the Race Relations Act 1976 before deciding to make the changes in the Immigration Rules for Postgraduate Doctors and Dentists that took effect on 3 April 2006.