R (on the application of Bapio Action Ltd and another) v Secretary of State for the Home Department and another [2008] UKHL 27 HL

NHS employers | international medical graduates | training posts

The House of Lords has held that it was unlawful for the Department of Health to issue guidance to NHS employers that doctors from outside the European Economic Area (EEA) should be appointed to training posts only if there were no suitable candidates from within the EEA to fill them.

Historically, there have not been enough junior doctors from within the EEA to fill all of the training posts in the UK, so it had been necessary to use international medical graduates from elsewhere, in particular India. From 2003, the easiest way for international medical graduates to gain entry into the UK was through the highly skilled migrant programme, which gave limited leave to remain in the UK for up to five years to non-EEA nationals who were able to show that they could obtain employment and support themselves, after which they were eligible to apply for indefinite leave to remain.

When steps were taken in 2005 to increase substantially the number of students graduating in medicine in the UK, the Department of Health became concerned that international medical graduates would deny employment to domestic medical graduates. It therefore issued guidance on 13 April 2006 advising NHS employers that only those international medical graduates whose limited leave extends beyond the period of the post on offer should be considered in the same way as EEA nationals. Those whose limited leave will expire before the end of the post on offer should be offered the post only if there are no suitable candidates in the resident labour market.

The British Association of Physicians of Indian Origin (Bapio) challenged the guidance, on the grounds that it introduced a new requirement that international medical graduates entering under the highly skilled migrant programme had to pass that went beyond the requirements set out in UK immigration rules. The Court of Appeal, overturning a High Court ruling, held that the issuing of the guidance had been unlawful.

The House of Lords agreed with the Court of Appeal. The Department of Health has powers under the National Health Service Act 1977 to issue guidance to employers within the NHS on the employment on staff, which, although not binding, is ordinarily followed. However, the ‘resident labour market’ test introduced by the guidance had the effect of introducing a new term into the highly skilled migrant programme that had not been formally authorised under UK immigration rules. Access to the highly skilled migrant programme would be impeded because the guidance introduced a new rule affecting the ability of international medical graduates to obtain employment and support themselves.

Case transcript of R (on the application of Bapio Action Ltd and another) v Secretary of State for the Home Department and another (on the UK Parliament website)

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