COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
MR JUSTICE STANLEY BURNTON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAURICE KAY
LORD JUSTICE RIMER
| THE QUEEN ON THE APPLICATION OF BAPIO ACTION LIMITED & ANOTHER
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT & ANOTHER
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Ms E Laing and Mr J Moffett (instructed by the Treasury Solicitor and the Solicitor to the Department of Health) for the Respondent
Hearing date: Tuesday 30 October 2007
Crown Copyright ©
Lord Justice Sedley :
The duty to consult
29. The gravamen of the appellants' challenge to the change to the Immigration Rules was that, as a matter of procedural fairness, IMGs in the United Kingdom who would be affected by the changes relating to PFT, or their representatives, should have been consulted before the respondents decided to make changes, but were not so consulted.
30. At issue is the status and expectations of IMGs who have already passed part 1 of the PLAB, travelled at great expense to the United Kingdom in order to take the second part of PLAB and seek training posts, passed part 2 of the PLAB, spent further time and further money in seeking training posts, only to discover suddenly that they are no longer eligible for such posts. Or who, having managed to secure a training post, and obtained PFT leave, suddenly discovered that they probably will not be able to continue in the post after their leave expires. The expectation of overseas-qualified IMGs who are already in the United Kingdom that they would not in effect be compelled to throw away their investment in postgraduate training in the United Kingdom without any proper consultation with them or their representatives can hardly be said to be unreasonable. This case is not about the thwarted hopes of overseas-qualified IMGs hoping to come to the United Kingdom to take up employment in the NHS. It is about what fairness requires in respect of those who have committed time, energy and resources in pursuit of a goal which is attainable under an existing set of rules before a decision is made to place that goal beyond reach.
The appellants' case
(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  1 All ER 904,  2 Ch 149, O'Reilly v Mackman  3 All ER 1124,  2 AC 237 and the recent decision of Roch J in R v Rochdale Metropolitan BC, ex p Schemet  1 FCR 306 are clear examples of this head of legitimate expectation.
(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  2 All ER 589,  2 QB 299 and A-G of Hong Kong v Ng Yuen Shiu  2 All ER 346,  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 is an illustration of a legitimate expectation founded upon practice albeit one denied on the facts by virtue of the national security implications.
The respondents' case
38. 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  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  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.
In R v IAT, ex p Bakhtaur Singh  1 WLR 910, 917-8, Lord Bridge amplified the distinction, pointing out that the Rules "do not purport to enact a precise code having statutory force" and "frequently offer no more than broad guidance as to how discretion is to be exercised in different typical situations".
"…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."
A duty to consult
"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."
Presumed parliamentary intent
"…a long course of decisions, beginning with Dr Bentley's case …., establish that, although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature."
Or as Lord Loreburn LC put it in Board of Education v Rice  AC 179, the duty to act in good faith and listen to both sides is a duty which lies on everyone who decides anything. The limit, of course, is where Parliament has expressly (see Wiseman v Borneman  AC 297) or by necessary implication (see Pearlberg v Varty  1 WLR 534) excluded such requirements.
A practice of consultation?
54. 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.
An obligation of fairness
The Department of Health guidance
63. ….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.
Lord Justice Maurice Kay:
A duty to consult?
The Department of Health guidance
"… it is not the case that the guidance goes beyond the Immigration Rules as a result of the Department of Health somehow misinterpreting or misrepresenting the effect of those rules. On the contrary, a deliberate decision was taken to make the guidance more restrictive that the Immigration Rules."
"… had doubts about the feasibility of excluding IMGs at postgraduate level from the HSMP without fundamental alterations to the provisions of the Immigration Rules governing the HSMP … Accordingly, it did not prove possible to agree a further amendment to the Immigration Rules relating to HSMP at the same time as the restriction of PFT."
Lord Justice Rimer:
Local Government Act 1933, section 112.
a. Local Government Act 1933, sections 270(1) and 285.
b. National Insurance Act 1946, section 77.
c. National Insurance (Industrial Injuries) Act 1946, sections 61(1) & (2).
d. Fire Services Act 1947, section 26(6).
e. Police Pensions Act 1947, section 1(1).
f. National Assistance Act 1948, section 6.
g. Local Government Act 1958, sections 27 & 41.
h. Teachers' Superannuation Act 1967, section 15(6).
Legislation which is still in force
i. Farm and Garden Chemicals Act 1967, section 1.
j. Industrial Organisation and Development Act 1947, sections 1 & 9.
k. Local Authorities (Land) Act 1963, section 9.
l. Local Government (Financial Provisions) Act 1963, section 12.
m. Medicines Act 1968, sections 58(6), 78 & 79(3).
n. Public Health Act 1961, section 82(4).
o. Public Libraries and Museums Act 1964, section 3(4).
p. Recorded Delivery Service Act 1962, section 1(4).
q. Trades Descriptions Act 1968, section 38(3)(a).
r. Transport Act 1968, section 101(6).
Introduction of duty to consult by subsequent amendment
s. Agriculture Act 1967, section 13.
t. Census Act 1920, section 3.
u. Cereals Marketing Act 1965, section 16.
v. Trade Descriptions Act 1968, section 38(2A).