| IMMIGRATION — Limited leave to enter — Trainee doctor — Departmental guidance preventing NHS hospitals from offering training contracts to overseas trainees — Existing trainees with limited leave to enter unable to renew training posts and losing entitlement to stay — Whether guidance lawful
R (BAPIO Action Ltd) v Secretary of State for the Home Department and another [2008] UKHL 27; [2008] WLR (D) 133
HL: Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell and Lord Mance: 30 April 2008
Departmental guidance to NHS trusts which had the effect of preventing trainee doctors from overseas being offered postgraduate training places in NHS hospitals was unlawful.
The House of Lords so held (Lord Scott of Foscote dissenting) in dismissing an appeal by the Secretary of State for Health against part the decision of the Court of Appeal (Sedley, Maurice Kay and Rimer LJJ) [2007] EWCA Civ 1139 allowing an appeal by BAPIO Action Ltd, an organisation representing doctors from the Indian subcontinent, against the decision of Stanley Burnton J that the guidance was not unlawful. The proceedings had been brought by BAPIO and a second claimant, Dr Imran Yousaf, since deceased, against the Secretary of State for the Home Department and the Secretary of State for Health for judicial review of the guidance, and also of changes to the Immigration Rules no longer in issue.
The guidance concerned postgraduate medical training whereby trainees worked in hospitals and received training as part of their employment. It instructed NHS trusts not to offer places to international medical graduates (“IMGs”) unless there were no suitable candidates in the resident labour market, owing to concerns that domestic graduates were unable to obtain such positions and thus unable to complete their medical training in the UK. The guidelines meant that those IMGs who had entered the UK under the Highly Skilled Migrant Programme (“the HSMP”), if they were unable to renew their training contracts, risked being no longer able to meet the requirements of their leave of entry.
LORD BINGHAM said that the effect of the guidance was to subject those IMGs who had entered under the HSMP to a new requirement, unexpressed in the Immigration Rules, that they should be employable as junior doctors only if they satisfied the resident labour market test. A new term, formally unauthorised, had been introduced into their permissions. Such a change should have been made as s 3 of the Immigration Act 1971 required, by means of a Statement of Changes to the Immigration Rules laid before Parliament.
LORD MANCE disagreed that such a new term had been introduced. However, for those IMGs already in the UK with HSMP status, the guidance undermined their legitimate expectations that their leave to stay with HSMP status would be renewed without difficulty provided the requirements for renewal were met. The introduction of a resident labour market test radically undermined that expectation. By issuing the guidance, the Secretary of State for Health as one emanation of the Crown had been 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. The inconsistency rendered the guidance invalid. His Lordship agreed that the appeal be dismissed, but did so by a different route to that taken by Lord Bingham.
LORD CARSWELL delivered a speech agreeing with Lord Bingham. LORD RODGER delivered a speech agreeing with Lord Mance. LORD SCOTT delivered a dissenting opinion.
|
