QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of BAPIO ACTION LIMITED (1)
DR IMRAN YOUSAF (2)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT (1)
|SECRETARY OF STATE FOR HEALTH (2)
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Jonathan Moffett (instructed by the Treasury Solicitor and the Solicitor to the Department of Health) for the Defendants
Hearing dates: 7 and 8 December 2006
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Mr Justice Stanley Burnton :
(a) Medical training
(b) The immigration requirements imposed on IMGs
(a) The provisions relating to doctors seeking leave to enter for the purposes of undertaking post graduate training as a PRHO were replaced with provisions relating to doctors with a confirmed place on the Foundation Programme.
(b) A doctor who was seeking leave to enter for the purposes of undertaking postgraduate medical training other than on a Foundation Programme required a letter from the relevant postgraduate dean which approved the doctor's training plan and recommended the duration of the leave that should be granted.
(c) The restrictions on a doctor's intentions post-training were relaxed.
(d) The initial periods which could be granted were to be 26 months for IMGs undertaking Foundation Programmes and 3 years for IMGs undertaking basic or higher specialist medical training.
(e) A requirement for entry clearance was introduced.
(f) The requirements that had to met before an extension of stay would be granted were tightened to limit the categories of leave to enter or remain from which a doctor could switch into PFT.
The changes to the Immigration Rules in April 2006
(a) The reasons for the changes
Some general matters
The changes to the Immigration Rules in April 2006
(a) Any existing leave of an IMG to enter or to remain for the purposes of PFT continued unchanged.
(b) If an IMG already had existing leave to enter or to remain for the purposes of PFT at the SpR grade (or equivalent), then he could switch into work permit employment without the need for his employer to demonstrate that the resident labour market test had been met, provided an application to do so was made by 31 December 2006;
(c) If an IMG on a Foundation Programme or at the SHO grade did not meet the requirements of the new rules, but had been offered a training placement prior to 7 March 2006 which was due to commence on or before 4 August 2006, and he did not have any leave sufficient to allow him to complete the new position, then the relevant employer could apply for a work permit even if the resident labour market test was not met. This arrangement also applied to those doctor in the SpR grades who did not have leave under PFT and whether or not the IMG was already in the United Kingdom.
(d) An IMG who did not already have existing leave to enter or to remain for the purposes of PFT, who sought an extension to any existing leave, would have to meet the requirements of the new rules.
The DH guidance
The situation of the Second Claimant and others
Ground 1 of the challenge: failure to consult before changing the Immigration Rules relating to PFT
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).
(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).
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 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.
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  2 AC 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  2 Q.B. 299 and Attorney-General of Hong Kong v. Ng Yuen Shiu  2 AC 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  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.
(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 S  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 an illustration of a legitimate expectation founded upon practice albeit one denied on the facts by virtue of the national security implications.
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.
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.
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.
Ground 2 of the challenge: the DH Guidance on HSMP
(a) It misrepresents the effect of the Immigration Rules.
(b) It is an illegitimate attempt to amend the Immigration Rules, thereby circumventing the requirements of section 3(2) of the Immigration Act 1971.
Ground 3: breach of the requirements of section 71 of the Race Relations Act 1976
(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.
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.
"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."
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.
|Category of doctor||Effect of changes|
|Current qualified specialist
(generally consultants and GPs)
|No change (did not qualify for PFT prior to changes)|
|Prospective specialist||No change (did not qualify for PFT prior to the changes)|
|Current career grade doctor||No change (did not qualify for PFT prior to the changes)|
|Prospective career grade||No change (did not qualify for PFT prior to the changes)|
current PFT sufficient to complete training programme
(2) current PFT insufficient to complete training programme
could switch onto work permit to complete training programme, without resident labour market test being met, provided application made by 31 December 2006 ([2/612] transitional arrangements, 6th & 7th bullet points)
The effect of the guidance is that IMGs on HSMP require a work permit, and the labour market test must be met, if their remaining leave is shorter than the post for which they apply.
Current PFT extends to cover start of SpR training programme
Was offered training position prior to 7 March 2006 and position was due to start on or before 4 August 2006
Does not fall within (1) or (2)
could switch onto work permit to complete training programme without resident labour market test being met, provided application made by 31 December 2006 (transitional arrangement, 6th& 7th bullet points [2/612])
could obtain work permit to complete training programme without resident labour market test being met (transitional arrangements, 4th & 5th bullet points [2/613])
PFT no longer available. can rely upon other provisions of the immigration rules (e.g. work permit, HSMP)
|Current SHO||No change (current PFT will remain and PFT will almost always have been granted for period which will cover entirety of SHO training). However, in practice they are unlikely to be able to proceed to SpR level and thereby complete their training in the UK.|
was offered training position prior to march 2006 and position was due to start on or before 4 august
does not fall within (1)
could obtain work permit to complete/post without resident labour market test being met (transitional arrangement, 7th bullet point [2/610] & 1st bullet point [2/611])
PFT no longer available. can rely upon other provisions of the immigration rules (e.g. work permit, HSMP)
|Current PRHO/foundation year||No change (current PFT will remain and PFT will almost always have been granted for a period which will cover entirety of PRHO/foundation year training.|
|Prospective PRHO/foundation year:
graduate of UK medical school
was offered training position prior to 7 mach 2006 and position was due to start on or before 4 august 2006
does not fall within (1) or (2)
No change (changes to IRs did not remove PFT for this category)
could obtain work permit to complete position without resident labour market test being met ( transitional arrangements, 7th bullet point [2/610] & 1st bullet point [2/611])
(3) PFT no longer available. can rely upon other provisions of the immigration rules (e.g work permit, HSMP)