Doctors' success in Court of Appeal judgment against HSMP restriction

In its judgment (R (on the application of BAPIO Ltd & another) v Secretary of State for the Home Department and the Secretary of State for Department of Health [2007] EWCA Civ 1139) on 9 November 2007 the Court of Appeal has allowed an appeal by BAPIO (the British Association of Physicians of Indian Origin) against its unsuccessful application for judicial review of guidance issued by the Department of Health.  

 The effect of the guidance was to make it impossible for most  doctors and dentists (and graduates from medical or dental school) who were not nationals of the EEA (European Economic Area) who had entered the UK to undertake training programmes to remain in the UK via switching to leave to remain under the Highly Skilled Migrant Programme.   Following changes to the immigration rules – which were also challenged by BAPIO, it was only via switching to the HSMP that those effected could continue their careers in the UK.  

The regime created by the immigration rules for non-EEA nationals seeking leave to enter as postgraduate doctors or dentists or as doctors wishing to study has been developed extensively since it was first included in the rules in 1985.  BAPIO’s members had entered the UK under the regime which was in place in 2005.  Under this regime graduates from medical and dental schools or qualified doctors and dentists could apply for leave to enter the UK for employment training.    They did not have to have a work permit for this, hence the term “permit-free training” (PFT).   

The courses or employment training they wished to do had to be approved by the relevant professional body.  They had to demonstrate an intention to leave the UK at the end of their leave to enter unless they had been granted leave to remain as students or student nurses, as doctors taking a Professional and Linguistic Assessment Board (PLAB) test, as work permit holders or under the HSMP.  

Graduates from medical or dental school could also enter the UK in order to take the PLAB test.  Having done so successfully they could switch to work permit employment or to the HSMP.  

The rule changes that came into force in March of 2006 limited PFT to graduates of UK medical and dental schools.  They and doctors and dentists  could continue to train and work in the UK but only if they obtained leave to enter on the same conditions for people who wished to enter the UK for paid employment.  

The changes did not apply to people already undergoing training.  People who had already entered for PFT could continue to train.  Doctors and dentists at Specialist Registrar level could move into work permit employment without having to show that there was no EEA national able to take the post his or her employer has offered.  

But there were no transitional provisions for graduates and fully qualified doctors and dentists who were in the UK on visitor visas and were looking for traineeships.  The rule changes had made it impossible for them to remain in the UK.   Also graduates on the PFT now had to get a work permit to continue their training in the UK.  

Those in the UK under PFT could still however switch to the HSMP.  As graduate trainees or practicing doctors they would normally qualify under the terms of the HSMP either to enter or to remain in the UK.  

However at almost exactly the same time as the immigration rules were changed the Department of Health issued guidance to National Health Service Employers effectively telling them not to offer any job to trainee doctors whose limited leave to remain in the UK expired before the end of any training post which was available.  This had the effect of closing off the remaining route for any extensions of stay for those who had come to the UK to take the PLAB test and who hoped to obtain a traineeship in the UK.

BAPIO argued that the rule changes had been unlawful because they had not been consulted.  They also argued that the Department of Health guidance was an abuse of power because it affects immigration law despite having any basis in the immigration rules or in general law.  

As was reported on this site BAPIO  lost on both of these points before the Administrative Court in February of this year.  The judge found that there had been no duty on the Secretary of State for the Home Department’s behalf to consult with BAPIO.  For there to have been such a duty there would have had to have been a practice of consultation with the group or with similar groups.  No such practice had been demonstrated to have occurred.  

As for the Department of Health’s advice to NHS employers:

“The guidance did not purport to represent the effect of the Immigration Rules.  It was guidance given to employers by a government department responsible for their functions.  It did not affect private hospitals, so that an IMG [international medical graduate] who qualifies under the HSMP may obtain employment there.  If the guidance affected immigration law or practice, it would restrict the leave that might be obtained by an IMG who is offered a post in a private medical establishment; but it does not.”

The Court of Appeal rejected the Claimants’ argument that there had been any duty to consult with them prior to the changes in the immigration rules – although for different reasons to those given in the Administrative Court.  

But it emphatically disagreed with the judge regarding the effect of the Department of Health’s guidance.  In the leading judgment Lord Justice Sedley (with whom the other Lords Justices agreed) said:

"The guidance, in my judgment, directly and intentionally affects immigration law and practice by imposing on the possibility of employment in the public sector a restriction beyond those in the Rules. " 

It was indisputable that the guidance intentionally affected immigration law because of a very frank witness statement produced to the Court by a senior civil servant in the Workforce Department of the Department of Health.  In her statement she said that there had been discussion with the Home Office as to the possibility of modifying the HSMP so as to exclude trainee graduates from it.  When the Home Office had considered that this might require fundamental changes to the Immigration Rules concerning the HSMP a different approach was adopted.  The senior civil servant described this approach as follows:

“a deliberate attempt was taken to make the guidance more restrictive than the Immigration Rules”

Of course immigration law is normally modified by changes in the immigration rules.  The Secretary of State for the Home Department (or “the Home Secretary”) is authorised to make such changes by section 3 of the Immigration Act 1971.  In Sedley LJ’s view it was inconceivable that it could have been said that the Department of Health’s guidance would have been lawful if it had instead been issued by the Home Secretary.  

As a result of this judgment many trainee doctors will be able to remain in the UK on the HSMP if they apply successfully  for trainee positions in the NHS and then apply to switch from their leave under the PFT rules to the HSMP.  

Gherson has extensive experience of making successful applications for its clients under the HSMP