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Published: Fri, 02 Feb 2018
Bapio Action Limited & Another
BAPIO ACTION LIMITED & ANOTHER vSECRETARY OF STATE FOR THE HOME DEPARTMENT & ANOTHER
This essay will focus on the Court of Appeal Case Bapio Action Limited & Another v Secretary of State for The Home Department & Another  EWCA Civ 1139.
It will contain comments on the court’s decision, the legal doctrine employed, and the reasoning of the court. It will also situate the decision within its social and political context and consider the implications of the decision as regards to law, policy and administration.
In order to gain a solid understanding of this case, it is essential to consider its background.
The National Health Service has had a long standing practice of training and employing a large number of doctors, native to the Indian subcontinent. This is a relationship of mutual benefit. Doctors originating from India, Pakistan, Sri Lanka and Bangladesh make up a large cohort of the international medical graduates (IMGs), defined by their lack of a right of abode here. This cohort includes trainee doctors as well as qualified ones, regardless of whether have studied or qualified in the UK or abroad.
The first claimant, Bapio, which stands for the British Association of Physicians of Indian Origin, was a representative of a large number of international medical graduates (IMGs) from the Indian subcontinent, a group particularly affected by the measures in issue. The second claimant was one of the doctors affected by the issue at hand – who, unfortunately, committed suicide while the case was still on trial.
In 1985 the PFT – permit-free training – was introduced by an amendment to the Immigration Rules. This meant that work permits would not be necessary for entrants that could satisfy certain requirements. The scheme underwent several modifications in the following years. In 1994 there was a waiver limitation for first-year trainees who had graduated from a UK medical school. This structure was relaxed in 1997.
In 2002 another modification took place, which included trainee GPs in the scheme. In 2005 the current extra-statutory concessions which allowed trainees to enter the country with the purpose of taking the language test, was replaced by a change in rules which separated the entry for the Professional and Linguistic Assessment Board tests from the leave to remain and obliged the IMG to leave the UK upon failing the test. It was possible for the first part of the test to be taken overseas, but it was mandatory for the second part to be taken in the UK. Later in the year the rule were subjected to yet another change so as to take into consideration the new Foundation Programme for doctors in their first two years of postgraduate training. IMGs who sought entry for training other than on the Foundation Programme were not restricted but they would now need academic endorsement.[i]
The problem arose when on 7 March 2006, Lord Warner, the Health Minister at that time, made public a series of new changes to the Immigration Rules affecting postgraduate doctors and dentists. The relevant statutory instrument containing them came into force on the 3rd of April, after the Home Secretary had laid it before Parliament on 13 March.
The effect of the changes was that they restricted access to Permit Free Training to graduates of UK medical schools. Also the scheme was restricted to the initial period of 26 months on a Foundation Programme with a potential extension to a maximum of 3 years. The most important consequence was that Permit Free Training was no longer open to graduates of foreign medical schools. They could always continue to train and work here, but they would have to secure entry on the same terms applicable to those entering in order to take paid employment.
However this new regime was not to apply to those already undergoing training.
Those greatly affected were the international medical graduates already in the UK on visas, and who had passed the Professional and Linguistic Assessment and were seeking traineeships, as there was no transitional provision made. Also those who were benefiting from permit free training would now have to obtain a work permit so as to continue to work in the UK after the training had ended.[ii]
The appellants argued that the members of BAPIO had a legitimate expectation , not that the rules would not be changed to their detriment, but that they would be consulted before such a decision would be made as a matter of procedural fairness.
Also in relation to the status and expectations of the international medical graduates who had passed the first part of the Professional and Linguistic Assessment and travelled to the UK in order to take the second part, and had spent further time and money in search of training posts, discovered suddenly that they were no longer eligible for the posts. Those who had secured a training post and were undergoing permit free training found out that they would most likely not be able to continue after the training period expired. The appellants submitted that a legitimate expectation with regards to consultation was owed in order to satisfy the fairness requirement in respect to the international medical graduates who had dedicated resources as well as energy and time in order to obtain a goal under a set of rules, before that set of rules were changed and the goal was placed beyond reach. [iii]
The respondents argued that The Immigration rules were immune to judicial review when it came to grounds such as consultation, because they are akin to delegated legislation. It was also argued that where Parliament intended to impose a duty of consultation, it would be stated on the face of the statutory instrument. Hence, the silence of the Immigration Act 1971 indicated that Parliament had no such intention. And finally they contended that such an obligation is too speculative and remote to earn protection. [iv]
Lord Justice Sedley was the first to give his judgment on the case: he dismissed the respondents argument relating to Parliament’s intention because mere presumptions of intention went against the whole rational of procedural fairness. He went on to explain that where there was a want of fairness in procedures laid down by Parliament, the common law would supply it, as per Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180 (approved inter alia in Ridge v Baldwin  AC 40).
His Lordship explained that there could be no practice of consultation established on the facts of this case , but if a regular practice of consultation had been established and Bapio, as the representative body of the group most directly affected by the decision , would have been excluded from this consultation , then this would have been deemed unjust.
His Lordship dismissed another of the respondents arguments, that which classified the procedural benefit the appellants sought as vague and remote, and recognised the negative impact the changes had on those affected and the strength of the claim Bapio had put forward .
He went on to explain that despite the strong claim the appellants had put foward, there would be a great deal of difficulty in reconciling the principle arising from a decision in their favour with the principles of public administration, which are also part of the common law, having originated from the separation of powers in state and the power of executive government to formulate and reformulate policy. He commented on the growth of the duty to give reason and compared it to the duty of consultation at hand, stating the it would not be unthinkable that the common law could recognise a general duty of consultation in relation to proposed measures which are going to adversely affect an identifiable interest group or sector of society.
Another issue identified was that of the consequences resulting from the recognition of a duty to consult, because it would certainly make it possible for a great number of people to commence litigation with the state, and thus injure a great number of interests. He also commented on the issue of technicalities that would arise with such a decision.
His Lordship again commented on the clear potential of the proposed duty but noted that if this duty of consultation were to be introduced it should be done so by Parliament, who could adjust and configure the specifics of such a duty over time, because they have a flexibility in such matters that the court lacked.
He concluded by saying that he was not prepared to hold that there was an obligation at common law to consult the affected parties or their representatives before applying the material changes to the Immigration Rules. He went on further to say, that the courts, who are highly concerned with developing principles, could not fabricate a duty to consult without assuming the role of the legislator. Thus the appeal was denied on the issue of consultation
The other two judges in the case Lord Justice Maurice Kay and Lord Justice Rimer reached the same conclusion but their argument was a more sharp-edged one. The appellants were not allowed to succeed on the issue of consultation simply because it was not a part of the scheme of section 3 of The Immigration Act 1971. If that was the legislature’s scheme, then the burden of medication should fall on the legislator and not the courts. [v]
Implications and Importance
The case at hand is concerned with the principle of legal certainty which indicates that a person ought to plan his or her own action on the basis of existing rules.
Problems of legal certainty and legitimate expectations can arise in a variety of circumstances:
1. a general norm and policy which an individual has relied on has be replaced by a different policy choice
2. a general norm or policy has been departed from in the circumstances of a particular case
3. there has been an individual representation relied on by a person which the administration seeks to resile in the light of a shift in general policy
4. there has been an individual representation relied on. the administrative body then changes its mind and makes and individual decision which is inconsistent with the original representation [vi]
The principle of legal certainty states that if the individual in question has placed reliance on those existing rules then a legitimate expectation that the rules in question would not be changed without informing/consulting the concerned parties beforehand, should arise.
The normative argument for according protection to substantive legitimate expectations is especially strong where the individual has detrimentally relied on a specific representation made by a public body. In the current context the already existing set of rules could amount to a representation.
While there is no general duty to be consulted in the UK, there have nonetheless been important political developments in this area. The cabinet office issued a code of practice on written consultation which applies to consultations issued after January 2001.
“The Government is committed to effective consultation, consultation which is targeted at, and easily accessible to, those with a clear interest in the policy in question”.- John Hutton BERR SoS Cabinet Office, Code of practice on consultation 2008
If one were to judge this case by the above and case law and the reasoning put forward by the appellants in support of a duty of consultation owed, it would be understandably difficult to understand why the appeal was not allowed. Especially with cases such as – R v.Minister of Agriculture,FisheriesandFood ex parte Hamble FisheriesLtd  2 All ER 714 193 – A-G of Hong Kong v Ng Yuen Shiu  2 All ER 346, , which could be said to have somewhat paved a way for the introduction of a duty of consultation.
However it is of essential importance to read Lord Justice Sedley’s judgement. His Lordship recognizes the consistency and weight of the appellants claim in relation to the detriment suffered by international medical graduates due to the change in rules. He also comments on the desirability and potential for growth a duty of consultation would have, comparing it to that of the duty to give reasons. With this Lord Justice Sedley has laid a few more bricks on the road to having a general duty of consultation in relation to proposed measures which are going to adversely affect an identifiable interest group or sector of society.
The decision could not be made in the case to recognize this duty because it would have went beyond the courts abilities, and would have required the court to take the role of a legislator thus violating the sanctity of parliamentary supremacy and the separation of powers. Not only this, but in order for such a duty to be adopted, many technicalities had to be overcome, and measures would have to be taken to ensure limitation and proper safeguards were set, and the courts did not have the necessary flexibility to ensure all of this.
Another issue would have been the precedent that this would have set for future cases as it would have served as a platform for initiating other litigation, thus opening the proverbial floodgates, bearing in mind the large amount of delegated legislation passed each year.
I find Lord Justices Sedley’s argument fair and respectful towards the appellants when contrasted with those of Lord Justice Maurice Kay and Lord Justice Rimer, who dismissed the appeal as well, on the grounds that there was no statutory duty of consultation. This leads me to classify Lord Justice Maurice Kay and Lord Justice Rimer as red light judges and firm supporters of the Diceyan view on separation of powers in state, whereas Lord Justice Sedley manages to act in accordance with the Diceyan view while also manifesting green light association.
A critique brought to this case would be the fact that it failed to supply a required norm, justice and fairness to the appellants, having been mostly decided on facts of policy.
In conclusion, I would like to highlight the important issues which have arisen.
The main one being the paving of a way for a general duty of consultation, in relation to proposed measures which would adversely affect an identifiable interest group or sector of society.
Undoubtedly, the remaining steps would have to be taken by the legislative body, but the first steps have been made here and in R v.Minister of Agriculture,FisheriesandFood ex parte Hamble FisheriesLtd  2 All ER 714 193. Another issue would be the reaffirmation of the principle of the separation of powers in state shown by the unwillingness of the court to assume the role of a legislator. Also this case served as a nice example of the embodiment of the red light and green light theory in a court of law.
Even though I believe that justice was not dealt in this case, I understand the reasoning behind the decision and recognise its importance to administrative law on the whole.
[i] Outlined throughout paragraphs 5 – 7 of the judgment in Bapio Action Limited & Another v Secretary of State for The Home Department & Another  EWCA Civ 1139
[ii] Outlined throughout paragraphs 8 – 11 of the judgment in Bapio Action Limited & Another v Secretary of State for The Home Department & Another  EWCA Civ 1139
[iii] Outlined throughout paragraphs 22 – 25 of the judgment in Bapio Action Limited & Another v Secretary of State for The Home Department & Another  EWCA Civ 1139
[iv] Outlined throughout paragraphs 26 – 27 of the judgment in Bapio Action Limited & Another v Secretary of State for The Home Department & Another  EWCA Civ 1139
[v] Outlined throughout paragraphs 28 – 47 of the judgment in Bapio Action Limited & Another v Secretary of State for The Home Department & Another  EWCA Civ 1139
[vi] Ch 20 Craig, P. P. (Paul P.), 1951- Administrative law / Paul Craig . – 6th ed. . – London : Sweet & Maxwell, 2008
A-G of Hong Kong v Ng Yuen Shiu  2 All ER 346, 
Bapio Action Limited & Another v Secretary of State for The Home Department & Another  EWCA Civ 1139
Craig, P. P. (Paul P.), 1951- Administrative law / Paul Craig . – 6th ed. . – London : Sweet & Maxwell, 2008 ch 20 ch 22
Code of practice on consultation 2008
Council of Civil Service Unions v Minister for the Civil Service AC 374
Leyland, Peter, lecturer in law Textbook on administrative law . – 6th ed. . – Oxford : Oxford University Press, 2009 ch 13
Leyland, Peter, lecturer in law Textbook on administrative law / Peter Leyland and Terry Woods . – 3rd ed . – London : Blackstone, 1999
Page, Edward, 1953- Governing by numbers : delegated legislation and everyday policy-making / by . – Oxford : Hart, 2001
R v.Minister of Agriculture,FisheriesandFood ex parte Hamble FisheriesLtd  2 All ER 714 193
RvSecretaryof State for theHomeDepartment,ex parte Khan
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