R (on the application of Bapio Action Limited and another) (Respondents) v Secretary of State for the Home Department and another (Appellant)

Informal departmental guidance is unlawful where it fundamentally undermines the immigration permissions and legitimate expectations conferred on existing highly skilled migrants under the statutory immigration scheme. A minister cannot achieve indirectly, without the prescribed parliamentary scrutiny, a restriction which the Government elected not to introduce through amended Immigration Rules.

Guidance applying a resident labour market test indiscriminately to international medical graduates was invalid because it materially impaired existing highly skilled migrants’ ability to obtain the skilled employment for which they had been admitted. Since the guidance contained no transitional protection and could not appropriately be rewritten by the court, it was invalid as a whole.

The Department of Health issued guidance directing NHS employers to give priority for postgraduate medical training posts to suitable UK and EEA applicants. International medical graduates whose limited leave expired before the end of a post were to be appointed only if the resident labour market test was satisfied. The guidance deliberately went beyond the applicable Immigration Rules, particularly the Highly Skilled Migrant Programme.

Stanley Burnton J upheld the guidance at first instance: [2007] EWHC 199 (QB). The Court of Appeal held it unlawful: [2007] EWCA Civ 1139. The Secretary of State appealed.

The central issue was whether employment guidance could lawfully impose, in practical effect, an additional restriction on international medical graduates who were entitled under the immigration scheme to seek skilled employment.

1. Appeal dismissed by a majority of four to one. Lord Bingham, Lord Rodger, Lord Carswell and Lord Mance held that the guidance was unlawful. Lord Scott dissented.

2. Per Lord Bingham, the guidance deliberately required certain international medical graduates to be treated as though they needed work permits. It thereby introduced an unwritten and formally unauthorised term into their permissions. It also disregarded the ordinary prospect that leave granted under the Highly Skilled Migrant Programme would be renewed. Restrictions of that character had to be made through the procedure required by the Immigration Act 1971.

3. Lord Carswell agreed with Lord Bingham. The Department intended to restrict immigration as the means of protecting training posts. Although the employment objective was legitimate, the chosen restriction effectively altered the permitted limits on non-nationals’ leave. It therefore required an amendment to the Immigration Rules and the associated parliamentary procedure.

4. Per Lord Rodger, the Home Secretary and Health Secretary implemented the policies of one Government. The guidance unfairly defeated legitimate expectations which the Government had encouraged highly skilled migrants to form and act upon. The Government could have sought to amend the Immigration Rules, subject to parliamentary scrutiny.

5. Per Lord Mance, the guidance did not legally alter anyone’s immigration status and was, in form, employment guidance within the Health Secretary’s functions. Nevertheless, existing highly skilled migrants had been admitted on the basis that they intended to make the United Kingdom their main home, would become economically active and could ordinarily obtain renewed leave. Applying the resident labour market test fundamentally undermined those legitimate expectations. One emanation of the Crown could not exercise its power inconsistently with expectations generated by the rules and practice of another.

6. Lord Mance considered that comparable expectations did not arise for overseas doctors who had not obtained immigration status. The position of doctors admitted only for permit-free training was also materially different. The actual guidance, however, applied to all categories without distinction or transitional protection. The court could not rewrite it or uphold it in part.

7. Lord Scott dissented. In his view the guidance had no legal effect on immigration status. A representation by the Home Office could not fetter the separate statutory discretion of the Health Secretary, and the continuation of an employment policy was not a legitimate expectation capable of preventing its adjustment to changing NHS needs.

1. House of Lords: By a majority of four to one, dismissed the Secretary of State’s appeal and upheld the conclusion that the guidance was unlawful: [2008] UKHL 27.

2. Court of Appeal: Sedley, Maurice Kay and Rimer LJJ held that the guidance was unlawful because it intentionally imposed a restriction beyond the Immigration Rules: [2007] EWCA Civ 1139.

3. High Court: Stanley Burnton J upheld the lawfulness of the guidance: [2007] EWHC 199 (QB).