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

Immigration Rules are administrative rules subject to parliamentary scrutiny, not delegated legislation in the strict sense. Where Parliament has not imposed a consultation duty, the court should not infer one merely because a rule change adversely affects individuals. A duty may arise from a sufficiently settled practice or a clear promise giving rise to a legitimate expectation. Any consultation must occur while proposals remain formative, provide sufficient reasons, allow adequate time for responses, and require conscientious consideration of the result. A public authority’s failure to comply with the statutory race-equality duty may justify declaratory relief, but does not necessarily require the underlying policy decision to be quashed. Departmental guidance to employers was not unlawful where it did not purport to amend or represent the Immigration Rules.

BAPIO Action Ltd and Dr Imran Yousaf sought judicial review of changes to the Immigration Rules restricting permit-free postgraduate training for overseas-qualified doctors and dentists, and of Department of Health guidance concerning NHS appointments for doctors subject to the Highly Skilled Migrant Programme.

The claim alleged failure to consult, an unlawful attempt by the guidance to alter the Immigration Rules, and breach of section 71 of the Race Relations Act 1976. The court also considered whether the statutory and parliamentary character of the Immigration Rules affected any common-law consultation duty.

1. Immigration Rules and consultation. The Immigration Rules are rules of administrative practice under section 3(2) of the Immigration Act 1971. They possess some qualities of law because they are generally applicable and subject to parliamentary scrutiny, but are not delegated legislation in the strict sense. Following Notts County Council v Secretary of State for the Environment [1986] AC 240, the court should generally refrain from reviewing the substance of a ministerial policy subject to parliamentary scrutiny.
2. Parliament had imposed no express consultation duty on the Secretary of State in relation to the Immigration Rules. There was no sufficiently consistent prior practice of consultation with BAPIO or comparable representative organisations capable of creating a legitimate expectation. The evidence showed consultation on some changes but not others. The claim therefore failed on the alleged consultation duty.
3. If a duty had existed, the court would have accepted that formal consultation was inapplicable for good administrative reasons, because public consultation risked precipitating applications before permit-free training was withdrawn. The January 2006 meeting was not, in any event, a compliant consultation exercise.
4. The applicable consultation requirements, derived from R v Brent London Borough Council, ex parte Gunning (1985) 84 LGR 168, were that consultation occur at a formative stage, provide sufficient reasons for intelligent consideration and response, allow adequate time, and require conscientious consideration of the responses.
5. The Department of Health guidance did not misrepresent or amend the Immigration Rules. It was guidance to NHS employers and did not alter immigration law or affect employment in private hospitals. That ground failed.
6. The Home Secretary was subject to section 71(1) of the Race Relations Act 1976. The evidence did not establish that the required race-equality considerations had been addressed before the decision to change the Rules. The claim succeeded on that ground, but the later assessment and the absence of a challenge to its sufficiency meant that quashing the Rules change was unjustified. A declaration was made that the Home Secretary had failed to comply with section 71 before deciding to make the changes.