R (BAPIO Action Ltd) v Home Secretary [2008] UKHL 27; ; [2008] 1 AC 1003

KEY POINTS

• Limited leave to enter allows individuals to stay in a country for a specified period with certain conditions. It is often granted to visitors, students, or temporary workers.

• The Highly Skilled Migrant Programme attracts skilled professionals to fill labour market gaps, allowing them to live and work in the host country.

• Postgraduate medical trainees seek NHS positions for professional development and specialization, which is critical for completing training requirements. Guidance from the Health Secretary to prioritize resident applicants for NHS training positions can limit opportunities for non-residents on temporary visas.

• Trainees may expect to qualify for indefinite leave to remain (ILR) based on established practices, and changes in policy could conflict with these expectations.

• The Immigration Act 1971 outlines the legal framework for UK immigration control, including the right of abode and the creation of Immigration Rules.

FACTS

• In 1985, the Immigration Rules were amended under the Immigration Act 1971 to allow international medical graduates up to four years of permit-free training in the UK, provided they intended to leave after training.

• In 2002, the Highly Skilled Migrant Programme allowed these graduates to enter for postgraduate training, with renewals of entry and eligibility for indefinite leave to remain after five years.

• In 2006, due to concerns about domestic graduates losing NHS training positions, the Immigration Rules were amended to restrict permit-free training to international students who graduated from UK medical schools.

  • However, the Highly Skilled Migrant Programme remained unchanged.

  • The Secretary of State for Health issued guidance directing NHS trusts to prioritize resident candidates over international medical graduates.

• BAPIO Action Ltd (“Claimant”), an organization representing doctors from the Indian subcontinent sought judicial review of this guidance.

• Stanley Burnton J (“Judge”) upheld the guidance.

• Still, the Court of Appeal ruled it unlawful, stating it should have been introduced as an amendment to the Immigration Rules under section 3 of the Immigration Act 1971. The Secretary of State for Health appealed this decision.

JUDGEMENT

• The Secretary of State for Health appealed, but the appeal was dismissed, with Lord Scott of Foscote dissenting.

  • The court held that the guidance issued to NHS employing bodies was invalid.

• The decision of the Court of Appeal was affirmed.

Lord Bingham of Cornhill and Lord Carswell

• The guidance imposed restrictions on offering training positions to international medical graduates under the Highly Skilled Migrant Programme, which altered the terms of their permission to enter or remain in the UK.

• As such, these changes fell within the scope of sections 1 and 3 of the Immigration Act 1971 and should have been made through an amendment to the Immigration Rules.

Per Lord Rodger of Earlsferry and Lord Mance

• The guidance represented an unfair exercise of power by the Secretary of State for Health, as it was inconsistent with the legitimate expectations of international medical graduates who had obtained Highly Skilled Migrant Programme status.

• These graduates expected that their status would be renewed without difficulty, provided they met the programme's requirements.

COMMENTARY

• In 1985, the Immigration Rules were amended to allow international medical graduates up to four years of permit-free training in the UK, provided they intended to leave after training.

  • In 2002, the HSMP allowed these graduates to enter postgraduate training with renewals of entry and eligibility for ILR after five years.

  • In 2006, due to concerns about domestic graduates losing NHS training positions, the Immigration Rules were amended to restrict permit-free training to international students who graduated from UK medical schools.

  • However, the HSMP remained unchanged.

  • Consequently, the Secretary of State for Health issued guidance directing NHS trusts to prioritize resident candidates over international medical graduates.

• BAPIO Action Ltd sought a judicial review of this guidance. The judge upheld the guidance, but the Court of Appeal ruled it unlawful, stating it should have been introduced as an amendment to the Immigration Rules under section 3 of the Immigration Act 1971.

  • The Secretary of State for Health appealed, but the appeal was dismissed, with Lord Scott of Foscote dissenting.

• The court held that the guidance issued to NHS employing bodies was invalid.

  • Lords Bingham of Cornhill and Carswell noted that the guidance imposed restrictions on international medical graduates under the HSMP, changing their terms of permission and falling within sections 1 and 3 of the Immigration Act 1971. These changes should have been made through an amendment to the Immigration Rules.

  • Lords Rodger of Earlsferry and Mance found the guidance to be an unfair exercise of power by the Secretary of State for Health, inconsistent with the legitimate expectations of HSMP participants.

• The decision of the Court of Appeal was affirmed.

• This case highlights the importance of following proper legislative processes when implementing policy changes that impact immigration status and the expectations of those affected by such changes.