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, but has imposed no express consultation requirement, the courts will not generally add a prior duty to consult as a requirement of procedural fairness. That does not immunise Immigration Rules from judicial review on established substantive grounds.

Guidance issued by one department of state is unlawful if it deliberately imposes an additional restriction on the employment of migrants which changes the practical conditions of their immigration status outside the Parliamentary-approved scheme under the Immigration Act 1971.

The appellants challenged two measures affecting international medical graduates without a right of abode in the United Kingdom. First, the Home Secretary amended the Immigration Rules to end permit-free training for most overseas-qualified doctors. Secondly, the Department of Health advised NHS employers to apply a resident labour market criterion to certain doctors on the Highly Skilled Migrant Programme.

Stanley Burnton J dismissed both challenges, while declaring that the Home Secretary had failed to comply in time with section 71 of the Race Relations Act 1976; he withheld relief on that issue. His decision is reported at [2007] EWHC 199 (Admin). The central issues on appeal were whether fairness required prior consultation on the rule change, and whether the Department of Health guidance was lawful.

1. The appeal was allowed in part. The court dismissed the challenge based on an alleged duty to consult before the Immigration Rules were changed, but declared the Department of Health guidance unlawful and of no effect.

2. On the consultation issue, Maurice Kay LJ’s approach, preferred by Rimer LJ, was that Parliament had prescribed a rule-making procedure under section 3 of the Immigration Act 1971. It required Parliamentary control through negative resolution but imposed no express duty of prior consultation. In that setting, it was not generally for the courts to superimpose an additional procedural safeguard on the ground of fairness. The Immigration Rules nevertheless remained susceptible to judicial review on ordinary substantive grounds, including ultra vires and irrationality.

3. Sedley LJ reached the same result by a different route. He held that the Rules had no general public-law immunity merely because they were laid before Parliament. However, a general consultation duty for measures adversely affecting an identifiable class would require choices about timing, consultees, scope and exceptions which courts could not supply without acting legislatively. The intermittent history of consultation did not establish a sufficiently consistent practice to create a procedural legitimate expectation.

4. On the guidance issue, the Department of Health had deliberately imposed a restriction more onerous than the Immigration Rules. It was intended to prevent NHS employers offering certain training posts to migrants unless a resident labour market criterion was met. That directly regulated the practical conditions on which that group could work in the public sector. A department of state could not achieve, through employment guidance, a change to immigration status which the Home Secretary could make only through the Parliamentary-approved immigration scheme. The fact that private-sector employment was unaffected reinforced that the guidance was state policy-making rather than ordinary employer conduct.

• Court of Appeal (Civil Division): Allowed the appeal concerning the Department of Health guidance, but dismissed the consultation ground.
• High Court, Administrative Court: Stanley Burnton J dismissed the consultation and guidance challenges in [2007] EWHC 199 (Admin). He also declared a breach of section 71 of the Race Relations Act 1976, but withheld relief after a subsequent equality impact assessment.