Factual and Procedural Background
This appeal concerns the lawfulness of two government measures affecting international medical graduates (IMGs) in the United Kingdom: the Home Secretary's alteration of the Immigration Rules abolishing permit-free training (PFT) for doctors without a right of abode, and guidance issued by the Department of Health advising NHS employers to restrict training posts for doctors on the Highly Skilled Migrant Programme (HSMP) based on the resident labour market criterion.
The procedural history includes a prior judicial review application partially decided against the executive, specifically regarding the Home Secretary's compliance with the duty under section 71 of the Race Relations Act 1976. That issue is no longer subject to appeal. The original trial judge ordered the applicants to pay costs to the Department of Health and the Home Office in specified proportions.
The NHS trains and employs many doctors from the Indian subcontinent, many of whom are IMGs lacking the right of abode. The first claimant represents a large proportion of this group, while the second claimant was an IMG doctor who tragically took his own life during the proceedings.
PFT was introduced in 1985 allowing certain entrants to take training posts without work permits, but over time the scheme was modified and restricted, culminating in the 2006 rule changes limiting PFT to UK medical graduates and restricting its duration. Existing trainees were protected by transitional provisions, but IMGs lawfully in the UK on visitor visas seeking training posts were excluded without transitional protection.
Following these rule changes, the Department of Health issued guidance to NHS employers effectively restricting employment of HSMP doctors whose leave to remain would expire before the end of a training post, unless the resident labour market criterion was satisfied.
Legal Issues Presented
- Whether the Home Secretary was required to consult IMGs or their representatives before altering the Immigration Rules to abolish permit-free training.
- Whether the Department of Health's guidance restricting employment of certain HSMP doctors was lawful and within its powers.
Arguments of the Parties
Appellants' Arguments
- IMGs and their representative body had a legitimate expectation of consultation before any detrimental change to the Immigration Rules affecting permit-free training.
- Consultation, if required, must be fully informed and open-minded; no such consultation occurred.
- The Department of Health's guidance imposing additional restrictions on employability of IMGs is an abuse of power, lacking legal foundation in the Immigration Rules or general law.
- Reliance on procedural legitimate expectation categories, particularly that fairness requires consultation before adversely affecting a defined class.
- Intermittent past consultations created a practice of consultation which should have been followed.
Respondents' Arguments
- No legal duty of consultation arises before changing Immigration Rules; the statute is silent and does not require consultation.
- Immigration Rules resemble delegated legislation but are immune from judicial review on grounds such as failure to consult.
- The duty to consult would be unworkably open-ended and speculative in benefit.
- The Department of Health's guidance is merely advice to NHS employers on contract matters, not a public law issue.
- Consultation would have undermined the effectiveness of the rule changes due to forewarning.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v MAFF, ex parte Hamble Fisheries Ltd [1995] 2 All ER 714 |
Legitimacy of transitional provisions protecting expectations during policy changes |
Used to illustrate that transitional protections can mitigate frustration of legitimate expectations |
| R v Devon County Council, ex parte Baker [1995] 1 All ER 73 |
Categories of procedural legitimate expectation requiring consultation |
Relied on to frame appellants' argument that fairness requires consultation before adverse rule changes |
| Schmidt v Secretary of State for Home Affairs [1969] 1 All ER 904 |
Procedural fairness and legitimate expectation |
Cited as an example supporting procedural legitimate expectation requiring consultation and reasons |
| O'Reilly v Mackman [1982] 3 All ER 1124 |
Procedural fairness in administrative decisions |
Referenced in relation to procedural legitimate expectation |
| R v Rochdale Metropolitan BC, ex parte Schemet [1993] 1 FCR 306 |
Procedural legitimate expectation and duty to consult |
Used to illustrate legitimate expectation based on practice or promise |
| R v Home Secretary, ex parte Hosenball [1977] 1 WLR 766 |
Status of Immigration Rules as non-delegated legislation |
Confirmed Immigration Rules are guidance with some statutory force but not strict delegated legislation |
| Pearson v IAT [1978] Imm AR 212 |
Nature of Immigration Rules as rules of practice |
Confirmed Immigration Rules as guidance for administration and appeals |
| R v IAT, ex parte Bakhtaur Singh [1986] 1 WLR 910 |
Immigration Rules not a precise statutory code |
Confirmed Immigration Rules provide broad guidance on discretion |
| R v Secretary of State for Health, ex parte US Tobacco [1992] 1 QB 353 |
Judicial review available for breach of consultation obligations even after parliamentary laying |
Supported that consultation breaches may be justiciable despite parliamentary process |
| Bates v Lord Hailsham [1972] 1 WLR 1373 |
No general duty to consult in statutory functions |
Referenced to show absence of a general legal duty to consult before statutory changes |
| Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240 |
Limits on judicial review of ministerial decisions subject to parliamentary scrutiny |
Discussed and distinguished; court rejected broad immunity from review |
| Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180 |
Common law supplies procedural fairness even if statute silent |
Supported argument that fairness can require consultation absent statutory provision |
| Board of Education v Rice [1911] AC 179 |
Duty to act in good faith and listen to affected parties |
Affirmed general duty of fairness in decision-making |
| Wiseman v Borneman [1971] AC 297 |
Express or implied exclusion of consultation requirements by Parliament |
Not applicable here; no exclusion found |
| Pearlberg v Varty [1972] 1 WLR 534 |
Implied exclusion of consultation requirements |
Not applicable here |
| R (S and others) v Secretary of State for the Home Department [2006] EWCA Civ 1157 |
Requirement for parliamentary authority for changes affecting immigration status |
Applied to show Department of Health guidance was unlawful without parliamentary approval |
Court's Reasoning and Analysis
The court recognized the unique constitutional status of the Immigration Rules as guidance approved by Parliament but not strict delegated legislation. It rejected the argument that the Rules are immune from judicial review on grounds such as failure to consult.
Regarding the alleged duty to consult, the court held that no established legal principle or practice imposed such a duty before altering the Immigration Rules. Although consultation had occurred intermittently in the past, it was not sufficiently consistent to create a legitimate expectation of consultation. The court emphasized the difficulty and impracticality of imposing a general duty to consult, noting the broad implications and the lack of specificity that courts could provide without usurping legislative functions.
The court distinguished between substantive legitimate expectations, which could be overridden by overriding policy objectives, and procedural expectations such as consultation. It concluded that fairness did not require consultation in this context, and that any such duty should be created by Parliament rather than courts.
In contrast, the court found the Department of Health's guidance unlawful because it imposed additional restrictions on IMGs' employment rights beyond those contained in the Immigration Rules, without parliamentary approval. The guidance was issued deliberately and intended to be followed by NHS employers, thereby affecting immigration status indirectly through employment conditions.
The court held that the Crown, as a single entity, cannot have one minister impose restrictions without parliamentary approval that another minister lacks authority to impose. Therefore, the Department of Health's guidance was unlawful and of no effect.
The court affirmed the trial judge's rejection of the consultation claims but reversed his decision on the Department of Health guidance, declaring it unlawful.
Holding and Implications
The court DISMISSED the appeal insofar as it challenged the absence of consultation before the Home Secretary altered the Immigration Rules.
The court ALLOWED the appeal insofar as it challenged the lawfulness of the Department of Health's guidance, declaring the guidance unlawful and of no effect.
This decision confirms that while the Home Secretary's rule changes to the Immigration Rules are not subject to a common law duty to consult affected IMGs or their representatives, government departments cannot lawfully impose additional restrictions affecting immigration status without parliamentary authority. The ruling does not establish a new general duty to consult before statutory rule changes but emphasizes the constitutional limits on executive action absent parliamentary approval.