R (BAPIO ACTION LTD & ANR) v HOME SECRETARY

Last Updated: 7:14PM BST 07/05/2008
House of Lords

Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell, Lord Mance

April 30, 2008

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Doctors – Foreign nationals – Legitimate expectation – Ministerial guidance – Recruitment – Lawfulness of ministerial guidance limiting recruitment of non-EEA doctors – International medical graduates – Highly skilled migrant programme

FACTS

The appellant secretary of state appealed against a decision ([2007] EWCA Civ 1139) that ministerial guidance issued to employing bodies within the NHS in April 2006 was unlawful. In the autumn of 2005, the Department of Health had 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 medical schools in the United Kingdom who were UK nationals, and there was no longer perceived to be an NHS need to recruit IMGs. The guidance was to the effect that, when NHS employers were looking for junior doctors to fill postgraduate training positions, applicants who were not nationals of the United Kingdom or any other European Economic Area Member State, and whose leave to remain in the UK would not extend beyond the duration of the position on offer, should not be offered the position unless there were no suitable candidates who were UK or EEA nationals.

ISSUE

Whether the guidance issued by the Secretary of State for Health limiting the recruitment of doctors from outside the European Economic Area was unlawful.

HELD (appeal dismissed) (Lord Scott dissenting)

(1) (Per Lord Mance) The guidance was unlawful. The grant of Highly Skilled Migrant Programme (HSMP) status to IMGs within the UK who enjoyed such status at the date of the guidance had undoubtedly given those persons a legitimate expectation that they would be able to seek and obtain employment in the fields of their skill. The guidance would have undermined their legitimate expectations in a very fundamental way. They would have come here intending to make the UK their main home. Their decision to come would necessarily have taken account of the prospect of employment in the NHS. Before 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, 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 that 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 the practice adopted by another emanation of the Crown, the Home Secretary. The inconsistency and its effects were so profound as to render such guidance invalid.

(2) (Per Lord Bingham) The guidance was unlawful. The Department of Health’s object “was to require that IMGs who had certain categories of limited leave to enter or remain in the United Kingdom (apart from those recognised as refugees) be treated as if they required a work permit to enter training positions in the NHS if the duration of their leave did not cover the duration of the training position for which they were applying”. In other words, a new term, unwritten and formally unauthorised, was being silently introduced into their permissions.

(3) (Per Lord Scott) The guidance was lawful. Two factors prevented a challenge based on legitimate expectations. First, the assurances relied on and the decision challenged had been made by different people: the assurances relied on had been made by the Home Office, whereas the decision had been made by the Secretary of State for Health. Second, the expectations of those concerned could not be elevated to a level that deprived the departmental policy on the employment of doctors at NHS hospitals of the flexibility that it needed in order to adjust to changing circumstances.

Jonathan Swift and Jonathan Moffett (instructed by In-House Solicitor). Rabinder Singh QC and Janet Kentridge (instructed by Linder Myers) for the respondents.