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

Where Parliament has prescribed a ministerial rule-making procedure subject to negative resolution, without an express duty of prior consultation, courts should not generally superimpose that safeguard through procedural fairness. A proposed consultation duty also requires a sufficiently specific principle defining its scope. These considerations precluded a duty to consult before the immigration rule changes in issue.

A government department cannot use employment guidance to impose additional restrictions on an identified group's immigration status outside the statutory procedure for changing the Immigration Rules. The Crown is a single entity. A restriction which one minister cannot lawfully introduce outside that procedure cannot be introduced independently by another.

BAPIO Action Limited represented doctors of Indian subcontinental origin affected by changes to permit-free training. The second claimant was a doctor who had passed the relevant assessment but remained on a visitor visa while seeking a training post. The Home Secretary changed the Immigration Rules without consultation, substantially restricting permit-free training while protecting doctors already undertaking it.

The Department of Health also issued guidance requiring NHS employers to apply a resident labour market criterion to certain doctors admitted under the Highly Skilled Migrant Programme. The guidance imposed a restriction absent from the Immigration Rules.

Stanley Burnton J rejected both challenges in [2007] EWHC 199 (Admin) and granted permission to appeal. His declaration that the Home Secretary had failed to comply with section 71 of the Race Relations Act 1976, and his refusal to invalidate the rule changes on that ground, were unchallenged. The appeal concerned whether prior consultation was required and whether the Department of Health could lawfully impose the additional employment restriction.

1. The appeal was allowed in part, unanimously. The challenge based on an asserted duty to consult before changing the Immigration Rules was dismissed. The appeal concerning the Department of Health guidance was allowed, and the guidance was declared unlawful and of no effect.

2. Maurice Kay and Rimer LJJ formed the majority on the statutory basis for rejecting the consultation claim. Section 3 of the Immigration Act 1971 prescribed a rule-making procedure involving parliamentary control through negative resolution, without an express consultation requirement. Courts should not generally superimpose additional procedural safeguards on such a scheme through an appeal to fairness. The difficulties in defining the proposed duty reinforced the conclusion that consultation formed no part of this statutory scheme (paras 58, 64–65).

3. All three judges accepted that the alleged duty lacked sufficient specificity and a clear limiting principle. Defining its timing, scope, consultees and procedure would require choices properly belonging to the legislature. Sedley LJ reached the same result through that reasoning, while rejecting any inference that statutory silence itself excluded common law fairness. He expressly left open whether fairness might require consultation in other statutory contexts (paras 43–47, 58, 63–65).

4. In Sedley LJ's analysis, an established consultation practice could create a procedural legitimate expectation. The practice need not be unbroken, but must be sufficiently consistent to amount to more than occasional voluntary consultation. The evidence established no such practice. Prior exclusion of a representative body would not necessarily prevent it from relying on an otherwise established practice (paras 38–40).

5. The Department of Health guidance deliberately imposed an employment restriction beyond the Immigration Rules. Its substance and purpose were to regulate conditions attaching to an identified group's immigration status. The guidance therefore engaged the statutory requirement for parliamentary authority, rather than merely advising employers about private contractual decisions. Its confinement to public sector employment did not cure the defect (paras 48–52, 59–61).

   The Crown was a single entity. Another minister could not introduce a restriction which the Home Secretary could not lawfully introduce outside the statutory procedure. The Secretary of State for Health's status as a corporation sole concerned continuity of property and contractual rights and did not alter the prerogative character of the office. The principle illustrated by R (S and others) v Secretary of State for the Home Department applied equally to the Department of Health (paras 53–55, 61, 66).

6. Sedley LJ also emphasised that compliance with section 71 of the Race Relations Act 1976 should precede the decision. The unchallenged refusal of relief following a subsequent assessment did not diminish that obligation (paras 2–3).

• Court of Appeal (Civil Division): [2007] EWCA Civ 1139 . Unanimously dismissed the consultation limb and allowed the appeal concerning the Department of Health guidance.
• High Court, Queen's Bench Division (Administrative Court): Stanley Burnton J, [2007] EWHC 199 (Admin) , rejected the consultation and guidance challenges and granted permission to appeal. He declared a failure to comply with section 71 of the Race Relations Act 1976 but withheld relief invalidating the rule changes. That aspect was unchallenged.