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

The central legal question was whether guidance issued by the Secretary of State for Health to NHS employers in April 2006 unlawfully affected the immigration-related expectations and privileges of international medical graduates (IMGs). The House analysed the interaction between the National Health Service statutes (duties and supervisory powers of the Secretary of State for Health), the Immigration Act 1971 (in particular sections 1 and 3 and the Immigration Rules), and the common law doctrine of legitimate expectation.

The majority concluded that the Department of Health's guidance, insofar as it imposed in practice a requirement that IMGs whose limited leave would not cover the duration of a post be treated as if they required a work permit (thereby invoking the resident labour market test), went beyond mere employment guidance and undermined legitimate expectations created by the Immigration Rules and practice for those already admitted under the Highly Skilled Migrant Programme (HSMP). Because that effect amounted to introducing a new, unwritten condition affecting the immigration position of IMGs, it should have been implemented, if at all, via amendment of the Immigration Rules and the procedural route mandated by the Immigration Act 1971. The guidance was therefore unlawful.

The claimants challenged informal guidance published in April 2006 by the Department of Health to NHS employers, which directed that international medical graduates (IMGs) whose limited leave would expire before the end of an offered training post should only be offered the post if there were no suitable UK or European Economic Area candidates. The guidance responded to a perceived need to prioritise home-grown medical graduates after substantial increases in UK medical student numbers, and followed amendments restricting permit-free training (PFT).

Parties and procedural history:

• BAPIO Action Ltd and Dr Imran Yousaf (first and second respondents) brought judicial review proceedings against the Secretary of State for Health and the Home Secretary. The High Court (Stanley Burnton J) upheld the guidance ([2007] EWHC 199 (QB)). The Court of Appeal reversed ([2007] EWCA Civ 1139), holding the guidance unlawful. The Secretary of State for Health appealed to the House of Lords.

Nature of the application and relief sought: The respondents sought judicial review declaring the guidance unlawful and of no effect on the employment prospects and immigration-related expectations of IMGs, particularly those with HSMP status.

Issues framed:

• Whether the guidance was a public law act subject to review.
• Whether the guidance fell within the scope of the Immigration Act 1971 and thus required amendment of the Immigration Rules under the statutory procedure rather than being achieved by departmental employment guidance.
• Whether the guidance unlawfully interfered with legitimate expectations of IMGs, especially those with HSMP status.

Court’s reasoning:

• Majority reasoning (Lord Bingham, Lord Rodger, Lord Carswell, Lord Mance): the guidance had the practical effect of introducing a new, unwritten condition into the permissions and prospects of IMGs (notably HSMP entrants) by subjecting them in practice to the resident labour market test. That consequence went to the substance of immigration entitlements and thus lay within the statutory scheme of the Immigration Act and Rules; it could not lawfully be achieved by informal departmental guidance. The imposition of such a condition without adopting the statute-prescribed procedure (and parliamentary scrutiny) rendered the guidance unlawful. The guidance also undermined legitimate expectations of those with HSMP leave who expected the opportunity to obtain NHS training posts and renewals under the existing scheme.
• Dissenting opinion (Lord Scott): viewed the guidance as bona fide employment policy within the Secretary of State for Health's wide statutory powers over the NHS and held that representations or practices of another department (Home Office) do not bind the Department of Health; therefore no unlawful fettering or breach of legitimate expectation arose and the appeal should succeed. The dissent emphasised departmental autonomy and the breadth of health-related statutory powers.

Disposition: By a majority the House dismissed the appeal and upheld the Court of Appeal's decision that the guidance was unlawful.

Appeal dismissed. The House (majority) held that the Department of Health's guidance, by effectively imposing a new condition (in practice subjecting many IMGs, including those with HSMP status, to the resident labour market test), altered the practical effect of immigration permissions and therefore should have been implemented, if at all, by amendment of the Immigration Rules under the Immigration Act 1971. The guidance was unlawfully adopted as informal employment guidance rather than by the statutory amendment route. A single Law Lord dissented, viewing the guidance as a lawful exercise of the Secretary of State for Health's employment supervisory powers and not as fettering by another minister's representations or practice.

[2007] EWHC 199 (QB) (Stanley Burnton J) - guidance upheld at first instance; [2007] EWCA Civ 1139 (Court of Appeal) - guidance held unlawful; appeal to House of Lords [2008] UKHL 27 (this decision).