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

Immigration Rules, although not delegated legislation in the strict sense, have legislative characteristics because of their general application and parliamentary scrutiny. Their substance is ordinarily not reviewable for unreasonableness, though procedural unlawfulness may in principle be examined.

A duty to consult before changing such Rules requires an express or implied statutory basis or special circumstances, such as a settled practice or clear assurance. No such practice existed here. In any event, consultation was inapplicable for good administrative reasons because it risked prompting applications before the proposed restrictions took effect. The Department of Health guidance was lawful. The Home Secretary had, however, failed to comply with the statutory race-equality duty.

BAPIO Action Ltd and Dr Imran Yousaf sought judicial review of changes to the Immigration Rules restricting permit-free postgraduate medical training for overseas doctors and dentists, and of Department of Health guidance concerning NHS appointments for doctors with limited immigration leave.

The claimants alleged failure to consult, unlawful alteration or misrepresentation of the Immigration Rules, and breach of section 71 of the Race Relations Act 1976. The central issues were whether consultation was legally required, whether the guidance unlawfully changed the Rules, and whether the Home Office had properly considered racial equality before making the changes.

1. Nature of the Immigration Rules. The Rules were rules of practice made under section 3(2) of the Immigration Act 1971, not delegated legislation in the narrow sense. Their general application, legal effect in immigration appeals and parliamentary scrutiny nevertheless gave them legislative characteristics. Following the constitutional reasoning in Notts County Council v Secretary of State for the Environment [1986] AC 240, the court could not ordinarily review their substance for unreasonableness. A procedural challenge was not excluded in principle.
2. Consultation. Parliament had imposed no express duty to consult before changing the Rules. The court was not prepared to impose one in the legislative context merely because the changes prejudiced affected individuals. There had been no sufficiently settled or uniform practice of consulting BAPIO or representative bodies. The claimants therefore had no legitimate expectation of consultation.
3. Further, if a duty to consult had existed, it was inapplicable for good administrative reasons. Public consultation risked causing a large number of applications before permit-free training was withdrawn. The January 2006 meeting had also given sufficient warning of the proposed direction of policy. If consultation had been required, the meeting would not have satisfied the requirements stated in R v Brent London Borough Council, ex parte Gunning (1985) 84 LGR 168, because the proposals were not presented in sufficient detail and there was no adequate opportunity for informed responses.
4. Department of Health guidance. The guidance was directed to NHS employers, did not purport to state the legal effect of the Immigration Rules, and did not alter immigration law or practice. The second ground of challenge failed.
5. Race equality duty. Section 71(1) of the Race Relations Act 1976 required the Home Office to give advance consideration to racial discrimination, equality of opportunity and good relations before deciding the policy. The evidence did not establish that this duty had been performed before the Rules were changed. The court granted a declaration to that effect, but did not quash the Rules, particularly because a later race equality impact assessment existed and its sufficiency was not challenged.

First-instance judicial review proceedings. The judgment does not state any subsequent appellate decision.