BAPIO argument
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 Posted: Mon Dec 11, 2006 3:29 am Post subject: BAPIO argument changes to the Immigration Rules applying IMG |
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BAPIO argument
CO/4699/2006
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
BETWEEN:
THE QUEEN
on the application of
(1) BAPIO ACTION LIMITED
(2) DR IMRAN YOUSAF
Claimants
and
(1) SECRETARY OF STATE FOR THE HOME DEPARTMENT
(2) SECRETARY OF STATE FOR HEALTH
Defendants
_______________________________________
CLAIMANTS’ SKELETON ARGUMENT
______________________________________
Time Estimate Hearing: 1 – 1.5 days
Pre-reading: ½ to 1 day
Essential reading Attachment to claim form (1/6-29); Joint Summary of Grounds for Resisting the Claim (1/30d-30s);
Witness statements: Ramesh Mehta (1/31-59); Imran Yousaf (1/225-236);James Quinault (1/232-236); Deborah Mellor (2/291-359).
(References to the judicial review bundle are in the form volume/page/paragraph.)
It is proposed that the parties prepare a joint chronology and list of characters.
* This skeleton argument supersedes the earlier one dated 17 November 2006. There are no changes of substance, but a table of contents has been inserted and references throughout are now to the judicial review bundle filed with the skeleton argument on 17 November 2006.
INTRODUCTION
1. On 7 March 2006, Lord Warner, the Health Minister, announced changes to the Immigration Rules applying to postgraduate doctors and dentists. These changes were introduced before Parliament on 10 March, and came into force on 3 April 2006. The changes entailed the abolition of the Permit Free Training System (PFT) whereby postgraduate doctors and dentists who do not have the right of residence in the United Kingdom and who qualified abroad were able to take up training opportunities in the National Health Service (NHS) without requiring a work-permit. As a result, international medical graduates (IMGs) who qualified abroad and then came to the United Kingdom in order to further their medical training on the Permit Free Training System have been left with little or no prospect of securing a training post. Even those who already have posts on the PFT are most unlikely to be able to complete their training under the new rules.
2. Shortly after the announcement of the abolition of PFT for overseas- qualified IMGs, NHS employers were advised by the Department of Health (DH) that individual doctors on the Highly Skilled Migrant Programme (HSMP) should be regarded as needing a work permit if the duration of the post applied for extended beyond the currency of that individual’s leave to remain on the HSMP. As a result, individuals on the HSMP were ruled out of consideration for posts extending beyond their current leave to remain on the HSMP in the most recent round of appointments. This has been severely prejudicial to them.
The nature of the claim
(1) Challenge to the decision to abolish PFT
3. The claimants challenge the decision, announced on 7 March 2006, to change the Immigration Rules relating to IMGs on the ground that the decision was unlawful because there was no prior notice to or consultation with those likely to be affected or organisations representing them, such as BAPIO. There are three aspects to this challenge:
3.1. first, those who are adversely affected by the absence of any transitional arrangements have wasted time and effort in qualifying themselves for PFT status in the legitimate expectation that existing arrangements would not be discontinued without a period of notice and adjustment. To deprive them of that legitimate expectation without notice or consultation was unfair. Doctors who currently hold PFT visas have been allowed to continue training in their current posts or to take up other relevant training posts until their leave expires. They have nevertheless been adversely affected in that they will, on expiration of their current leave, usually be required to obtain work permits if they wish to continue their training. Because those requiring work permits are “at the back of the line” in terms of categories of applicants, they are in practice extremely unlikely to obtain the posts they seek. It was unfair to impose upon them, without prior notice or consultation, this more onerous requirement which is likely to disrupt the completion of their training;
3.2. second, there has in the past been a practice of prior consultation in relation to immigration laws and practices affecting doctors. Like the changes themselves, consultations have been driven by the Department of Health (DH). Indeed, there was late last year consultation about changes to the PFT system, resulting in guidelines for modifications to the PFT system which came into effect as recently as February 2006, with no suggestion that the entire system would be jettisoned within months. There was therefore a legitimate expectation on the part of those affected, such as Dr Yousaf, the second claimant, and organisations like BAPIO, that the arrangements about which they had so recently been consulted and on which they had so recently made representations would remain in place for more than just a couple of months. There was also a legitimate basis for their expectation that they would be consulted before changes were made adversely affecting their members (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374).
3.3. finally, and in the circumstances, the sudden abolition of the PFT system was a breach of the defendants’ duty to act fairly in deciding on the future regulation of IMGs.
(2) Challenge to the Department of Health Guidance on the implementation of the new Immigration Rules
4. The Department of Health guidance to the effect that doctors on the HSMP could in practical terms be appointed only to those posts the duration of which did not extend beyond the currency of that individual’s leave to remain on the HSMP was
4.1. incorrect in its advice on the impact of the new rules on the status of HSMP doctors and wrong as a matter of law; (Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112); and
4.2. unreasonable, discriminatory, unfair and an abuse of power.
It therefore falls to be reviewed.
(3) Failure to comply with section 71 of the Race Relations Act
5. The changes to the Immigration Rules affecting IMGs were decided, announced and initially implemented without a race equality impact assessment. This constitutes a failure to comply with section 71 of the Race Relations Act of 1976, as amended.
The claimants
6. The first claimant, BAPIO Action Limited, was established by the British Association of Physicians of Indian Origin (BAPIO). Its objects include assisting members of BAPIO facing hardship due to unemployment or uncertainty in their careers and in making appropriate arrangements for legal representation for the redress of grievances. The recent changes in the Immigration Rules and DH Guidance on the appointment of IMGs have given rise to many cases in the Immigration and Employment tribunals. BAPIO is a voluntary organisation representing the interests of medical graduates of Indian origin (countries of the Indian sub-continent, including India, Pakistan, Bangladesh, Sri Lanka and Nepal), who form the bulk of all IMGs. The President of BAPIO is Dr. Ramesh Mehta, a consultant paediatrician.
7. The second claimant, Dr Imran Yousaf, is an overseas-qualified IMG who came to England in order to complete his postgraduate training but whose attempts to do so have been thwarted by the abolition of PFT for overseas- qualified IMGs.
SALIENT FACTS
The immigration status of International Medical Graduates
8. The claim concerns International Medical Graduates who have qualified outside the UK and the EU and who do not have the right of residence in the UK. They are designated “IMG” in the claim form and in Dr Mehta’s witness statement. The Joint Summary of Grounds for Resisting the Claim (“joint summary grounds”) and the witness statement of Deborah Mellor use the acronym “IMGs” to include doctors who have studied medicine and qualified in the UK but who do not have the right of residence. In the interests of clarity, the broader definition is adopted in this skeleton argument, and those in the narrower group, to whom the claim relates, are where necessary referred to as “overseas-qualified IMGs”.
9. IMGs have always been a special category under the Immigration Rules. Prior to 1985, doctors from overseas were not subject to the normal work permit arrangements, but were in practice freely admitted to the UK and given permission to stay to take professional appointments if they satisfied the relevant registration requirements of the General Medical Council. This was perceived to have a range of advantages for the United Kingdom. Since 1985, a number of changes have been made to the regulation of the immigration and employment status of IMGs – some by way of changes to the Immigration Rules, others by way of de facto practices and interim arrangements.
10. The rules were altered in April 1985, when the PFT system was introduced. This allowed IMGs to enter or remain in the UK in order to take employment for the purposes of postgraduate medical training (“Training Grade”) in the NHS without requiring a work-permit. A work permit was however required for employment other than for training purposes (often called “Career Grade”).
11. Another set of changes to the Immigration Rules came into effect on 1 April 1997, the effect of which was to allow the extension of permit-free training. Among other things, the maximum period for which leave to enter could initially be granted was extended from 12 months to 3 years, and the restriction on the total length of stay to a maximum of 4 years was relaxed in respect of doctors undertaking postgraduate medical training. Such doctors had to be eligible for provisional or limited registration with the General Medical Council (GMC), and had to demonstrate, in order to obtain leave to enter or an extension of stay, that they could maintain themselves without recourse to public funds.
12. The 1997 changes to the Immigration Rules affecting IMGs were a consequence of the fundamental changes to postgraduate medical training in the UK that followed the Calman Report of 1993 (see Mellor volume 2/pages/304-306/paragraphs 36-40; pages 320-324/paragraphs 82-93). Important as the changes were, their effect on IMGs already in the UK was nothing like as drastic as the effect of the 2006 changes. Indeed, in many ways the new dispensation was less restrictive than what had gone before. From the point of view of the doctors affected, the need for prior notice and consultation was therefore less acute than it was in 2006. Nonetheless, the 1997 changes were preceded by an extensive process of consultation, described below.
13. In March 2005, the Immigration Rules were amended so as to formalise the arrangement whereby IMGs were given leave to enter the UK in order to sit the Professional and Linguistics Assessment Board (PLAB), and thereafter, if they passed the test within no longer than 18 months, given leave to remain in another eligible category. As Deborah Mellor notes, these amendments were at the instance of the Home Office (whereas changes affecting IMGs were usually initiated by the DH). Even though this was merely a formalisation of existing arrangements, it was preceded by informal consultations with the DH, the GMC, the General Dental Council and the British Medical Association (BMA).
HSMP
14. Since January 2002, IMGs have been allowed to work in the UK under a new provision – the Highly Skilled Migrant Programme (HSMP). HSMP is not unique to doctors – it is open to all categories of skilled workers. IMGs on HSMP may take up any type of doctor’s job, Training Grade or Career Grade, and as per HSMP rules, once they have been given HSMP status, they are to be regarded as being at par with EU nationals for all job opportunities as a doctor (this includes training posts).
15. In the past leave under the HSMP was given for one year, then extended for three years. Following changes to the Immigration Rules, it will be given for an initial two year period, and thereafter for three. It is possible to obtain an extension of HSMP leave provided it can be shown that the applicant is law-abiding and economically active. Until the recent changes, it was also possible to obtain indefinite leave to remain after four years of continuous residence on an HSMP visa, provided that the applicant was, among other things law-abiding and economically active. The application for indefinite leave to remain can now be made only after five years of continuous residence as an HSMP, but the other criteria for the grant of such leave remain the same.
PLAB
16. Like all doctors working in the UK, any IMG wishing to work in the NHS is required to be registered with the General Medical Council. To avail himself or herself of PFT or HSMP status, a doctor is required to obtain GMC registration.
17. While UK and EU graduates are automatically registered, overseas qualified IMGs are not. For such IMGs there are other routes for obtaining registration but by far the most common route is to pass the GMC’s PLAB examination. The present matter is concerned with IMGs who have taken PLAB.
18. PLAB is taken in two parts. The first part can be taken overseas in the IMG’s country of origin. The second part can be taken only in the UK. The fee for PLAB is in the region of £450-600. PLAB also has a low pass rate. The only purpose of taking the PLAB examination is to qualify for GMC registration to work in the UK. PLAB is not recognised as a qualification in any other respect. It is a very major undertaking for an IMG from a third world country first to take and pass part I of PLAB in his or her native country, then to travel to the UK, complete PLAB (often in more than one attempt), compete for jobs, find a suitable training appointment and pay the Home Office £500 for conversion of a visitor visa to a PFT visa.
19. The GMC has been increasing the number of PLAB examinations being conducted each year. This has led IMGs abroad to believe that there are training posts available in the UK, and that coming to the UK to undertake the exam is worthwhile. In recent years the DH has welcomed IMGs and, until quite recently, created the impression that there are opportunities in the NHS. Despite the risks and expense involved in gaining registration, this has increased the inflow of IMG coming to the UK. Many have been waiting for as long as two years.
20. The overall number of training opportunities in the NHS has not increased significantly in the last few years. But there has been a significant and steady increase in the number of doctors passing out of UK medical schools and, in practice, a concomitant reduction in the number of posts available to IMGs. This has led to a backlog in the UK of those IMGs who have come here, passed the PLAB and are seeking training opportunities.
21. The difficulties experienced by the doctors in this situation are described in Dr. Mehta’s witness statement and are illustrated by Dr Yousaf’s predicament. The situation of IMGs in Dr Yousaf’s position has become increasingly difficult, a matter on which organisations such as BAPIO have consistently made representations to the DH.
22. Deborah Mellor states that since April 2004, IMGs booking their PLAB test on the internet have had to undertake that they have read the information on job prospects. From July 2005 such information included a warning that the UK job market is very competitive and a recommendation that those intending to apply for the test should carefully consider whether they were willing to take the risks involved in competing for posts.
23. Even those who took note of that warning would have expected to have as good a chance as any other graduate of obtaining a training post once they had come to the UK and passed the PLAB. Having been thus put on notice of a very competitive job market, they might at the very least have reasonably expected to be put on notice of the much graver risk that PFT for overseas-qualified IMGs would be abolished in less than a year, so that there was really no point in going to the trouble and expense of completing the PLAB.
24. It is one thing to be put on notice of the risk of a competitive job market. It is quite another to qualify oneself to compete in that market only to find that a massive barrier to entry to the market has suddenly been raised for the very purpose of preventing one from competing as an equal in the market. The NHS website for on-line applications for training posts precludes foreign-qualified IMGs from even applying for posts, pursuant to DH guidance to employers that they may restrict applications for popular posts to doctors who do not need a work permit to take up the contract. As Dr Yousaf points out at paragraph 12:
“Before the changes in Immigration Rules, I had the right to apply for any training post. The posts may have been difficult to obtain, but at least I could compete as an equal for such posts. I was not being sent to the back of the line on the grounds of my nationality. When I came here to complete the PLAB, it was on the basis that doing so would enable me to compete as an equal for training positions, having proved that I was professionally and linguistically fit to do so. My reasonable expectation was that, if I passed the PLAB, I would have as good a chance as any other applicant for any available training post.”
The 2006 changes to the Immigration Rules
25. The changes announced by Lord Warner on 7 March 2006 were laid before Parliament on 13 March and came into effect on 3 April. An Explanatory Memorandum to the relevant Statement of Changes in Immigration Rules was laid before Parliament on 30 March 2006 (RM 1 1/168-173).
26. The changes to the Immigration Rules which came into force on 3 April 2006 are summarised by Deborah Mellor at paragraphs 147-149 (2/345-346). She notes that the PFT was not “abolished”, although significantly restricted, because graduates of UK medical schools can still undertake a Foundation Programme for an initial maximum period of 26 months on PFT, with the possibility of extension to a maximum 3 years. But for overseas-qualified IMGs such as Dr Yousaf, on behalf of whom this claim is brought, PFT was effectively abolished. Most significantly, the PFT was not simply abolished in respect of IMGs still wishing to enter the UK for purposes of postgraduate medical training, but with immediate effect for IMGs such as Dr Yousaf who have already travelled to the UK and undertaken the PLAB on the expectation of being able to compete on equal terms for postgraduate training posts. For those in Dr Yousaf’s position, there were no transitional arrangements whatsoever.
27. Ms Mellor notes at paragraph 148 that although the Immigration Rules did not contain transitional provisions, concessions were included in the Immigration Directorate’s Instructions (“IDSs”) on postgraduate doctors and dentists. Her summary of the transitional provisions makes it clear that no concessions were made to unemployed, PLAB passed IMGs such as Dr Yousaf.
Effect on doctors who currently have PFT leave
28. Doctors who currently have PFT leave have been allowed to continue training in their current posts or to take up other relevant training posts until their leave expires. They have nevertheless been adversely affected in that they will, on expiration of their current leave, usually be required to obtain work permits if they wish to continue their training. Because those requiring work permits are “at the back of the line” in terms of categories of applicants, they are in practice extremely unlikely to obtain the posts they seek. It was unfair to impose this more onerous requirement upon them without prior consultation with representative bodies.
29. IMGs with PFT leave at the SpR grade or equivalent, that is, registrars, can switch to work permit employment without the employer having to demonstrate that the labour market test has been met, provided an application to do so is made by 31 December 2006.
Effect on PLAB-passed unemployed doctors
30. Where a PLAB-passed unemployed doctor was offered a training post before the changes were announced on 7 March, and the post commences on or before 4 August, a work permit will be required, but the employer will not have to demonstrate that the resident labour market test has been met (that is to advertise the post to EEA nationals first) and the doctor will not have to leave the country during the application process
31. PLAB-passed unemployed doctors legally in the UK on a visitor visa and still seeking training opportunities under the PFT scheme have been left high and dry. The only means of obtaining a training placement for them now is to obtain work permits. As described above, work permits are issued only if employers can demonstrate that no one not requiring a work permit can be recruited for the post (the resident labour market test). That is in practice almost impossible, especially at the most junior level. Further, even if they find such an opportunity, the work permit rules require them to leave the country and apply for a work permit from overseas. In effect their prospects have become nil. All their time, effort and resources have been wasted completely, and they have to leave the UK when their existing visitor’s visas expire. Since the launch of proceedings, large numbers of IMGs have already had to leave the UK.
32. That thousands of IMGs have been affected by the changes to the Immigration Rules is clear from the DH evidence. In or around November 2005, when it was first decided that PFT should be withdrawn in time for the next annual round of recruitment into training positions, there were some 16,175 IMGs working in the NHS training grades of equivalent. There were in addition
“several thousand IMGs in the United Kingdom who had passed PLAB and who were looking to obtain positions in the NHS. If a possible imminent restriction to PFT had been widely publicised, it was likely that a large proportion of those IMGs would have sought to obtain PFT status before any changes came into effect, thereby undermining the policy behind the changes”.
33. The anxiety on the part of the DH that there would be a rush to obtain PFT status in anticipation of its abolition is puzzling, given that such status was dependent on obtaining a post, and that such posts were very difficult to come by. No amount of sympathy from the postgraduate deans could have created a situation whereby thousands of PLAB passed IMGs would quickly become eligible for PFT status.
34. At paragraph 15 of the joint summary grounds, it is suggested that the claimants, in describing the devastating the effects of the changes on IMGS such as Dr Yousaf, are somehow asserting “that IMGS have some form of underlying entitlement to come to the United Kingdom to engage in publicly-funded postgraduate medical training and take up publicly-funded employment in the NHS”. After denying that there is any such entitlement, paragraph 15(1) states: “IMGs might have hoped that they could come to the United Kingdom to take up employment in the NHS, but they could never have had the expectation that they would be able to do so.” Reference is also made to a requirement for doctors undergoing the PLAB test to sign a declaration acknowledging the fact that job opportunities in the United Kingdom are limited.
35. As to the last point, the defendants have produced no evidence of a declaration to be signed. At paragraph 174, Deborah Mellor states that those who apply online to take the PLAB (as the vast majority of applicants do) have since April 2004 been required to undertake that they have read all the information provided on job prospects, and that this has included information that the market is very competitive. That is not quite the same as signing a declaration. More importantly, as remarked above, it is one thing for an applicant to be put on notice of a highly competitive market in which he can equip himself to compete as an equal. It is quite another, once he has committed himself to doing so, effectively to preclude him from competing as an equal in that market.
36. Therein lies the fallacy of the defendants’ attempts to cast the claimants as overreaching the limits of the rights and reasonable expectations of overseas- qualified IMGs. This case is very clearly not about the thwarted expectations of overseas-qualified IMGs hoping to come to the United Kingdom to take up employment in the NHS. No claim is made of any such entitlement or legitimate expectation. What is at issue is the status and expectations of the thousands of IMGs who have already written part 1 of the PLAB, travelled at great expense to the United Kingdom in order to write the second part of PLAB and seek training posts, passed the PLAB, spent further time and further money in seeking such posts only to discover suddenly that they are no longer eligible for such posts. Or, having managed to secure a training post, and obtained PFT leave, suddenly discover that they probably will not be able to continue in the post after their leave expires. The expectation of overseas-qualified IMGs who are already in the United Kingdom that they will not in effect be compelled to throw away their investment in postgraduate training in the United Kingdom without any proper consultation with them or their representatives can hardly be said to be unreasonable.
37. In this context, the repeated reference in paragraph 15 of the joint summary grounds to “publicly funded” training and employment, the suggestion that IMGs illegitimately assert an “entitlement” to such training and employment “at public expense” is unworthy of the defendants. The evidence of the DH in particular makes no secret of the fact that, since the founding of the NHS in 1948, IMGs have been recruited to service the needs of the NHS and thereby the population of the UK. From time to time, there have been concerns of supply outstripping demand, and of IMGs overstaying their welcome, and the basis upon which IMGs enter the United Kingdom and take up posts in the NHS has been restricted accordingly. The abolition of PFT for overseas-qualified IMGs, the attempts to make it harder for those on the HSMP to obtain posts (considered in detail below) are frankly admitted to be a consequence of the fact that the DH perceives that there are now sufficient homegrown doctors to render IMGs redundant, but that if IMGs continue to occupy NHS posts to the extent they do at present, UK trained doctors will be unable to find posts.
38. Given the history of IMG recruitment to the United Kingdom, and the critical role IMGs have played in the NHS from its inception, the suggestion that IMGs are illegitimately asserting an entitlement to publicly funded posts at public expense is unfair and disrespectful.
CHALLENGE ON THE GROUND OF LACK OF ADEQUATE CONSULTATION BEFORE ABOLISHING PFT FOR OVERSEAS-QUALIFIED IMGS
39. There was no prior consultation with organisations representing overseas-qualified IMGs before they were excluded from PFT. The failure to consult on the abolition of the PFT for overseas qualified IMGs has occurred in a context where there is a precedent for consultation, especially in recent years.
1985
40. PFT was introduced in 1985. Deborah Mellor describes the consultation that preceded the introduction of PFT as “limited” and states that there was no consultation with groups representing IMGs.
41. Significantly, however, the 1985 changes did not affect overseas qualified IMGs who were already in the UK. This is confirmed in contemporaneous evidence. For example, in discussions preceding changes to the Immigration Rules in 1985, representatives of the Department of Health and Social Security (DHSS) pointed out to their colleagues at the Home Office
“that although overseas doctors represented about 25% of NHS medical manpower and constituted a well organised lobby, the proposed controls would not actually affect those overseas doctors already in the UK. However, they agreed that the controls were likely to be unpopular with ethnic minority groups. But they suggested that this line could be countered to some extent with the argument that it was wrong for the UK to continue to depend so heavily on overseas doctors and thus deprive other countries of their own medical manpower.” (emphasis added)
42. This passage makes the point that doctors already in the UK were not affected by the new rules. This is a critical difference between the 1985 changes and the April 2006 changes. The recent changes drastically restrict the rights and expectations of doctors who have already come to the country under the previous system. They are in that sense “retrospective” whereas the 1985 changes were “prospective” in that they affected doctors who wished to come to the UK to train and work, but not the rights and expectations of those already here. Hence the context in 1985 was entirely different from that in 2006.
Interim arrangements
43. By the early 1990’s there was concern in the DH and Home Office that doctors on PFT were swapping into work-permit employment so as to prolong the length of their stay in the United Kingdom beyond that which their training required. This led to a consultation exercise in 1993.
44. On 22 September 1993, a letter was distributed setting out and inviting comments on proposals for changes in the arrangements under which IMGs were to be allowed to remain in the UK for permit free graduate training beyond the maximum period of four years permitted under the Immigration Rules. The letter set out the proposed changes, explained their rationale, and invited comment by 30 November 1993.
45. A letter dated 21 April 1994 announced that the consultation exercise initiated on 22 September 1993 was now complete. Pending introduction of the changes, the interim arrangements set out in the original consultation document were extended. Feedback on the interim changes was also requested. Examples of responses to the request for comment on the interim arrangements are at 1/120-129.
46. Given the extent to which comment and feedback on the interim changes was elicited, it is difficult to understand Ms Mellor’s assertion at paragraph 78 that they were introduced without formal consultation.
1997
47. In 1997 the PFT rules were modified and the period available for PFT significantly extended. At paragraph 94 of her witness statement, Deborah Mellor states that “there was never any consultation on the changes made to the Immigration Rules in 1997.” This is puzzling, because the preceding ten paragraphs and the documents to which they refer evidence a process of consultation that was indeed extensive. The following bears emphasis:
47.1. The process began with the investigations and report of the Overseas Doctors Training Working Group (ODTWG). Its report is at 2/488-515. Annex I to the report (2/514) lists the membership of the ODTWG, which was broadly representative of interested groups, including the Junior Doctors Committee, the GMC Overseas Committee and the Overseas Doctors’ Association.
47.2. The ODTWG report dealt pertinently at paragraphs 52-54 with immigration arrangements and recommended that the immigration arrangements be reviewed taking into account the changes in training arrangement proposed in the Calman report and the ODTWG Report.
47.3. The Report was sent out for consultation on 18 May 1995. The covering letter concludes:
“In view of the complexity of some of the issues and the implications of some of the recommendations it is important that there should be wide and thorough consultation on these reports. The bodies and individuals from whom we are seeking comments are listed in the full annex to this letter. Please send comments by Friday 18 August 1995…”
The list of consultees is long. It includes the GMC, the Hospital Doctors Association, the Junior Doctors Committee, and the Overseas Doctors’ Association.
47.4. Ms Mellor discounts this round of consultation because it concerned a general recommendation rather than specific proposals. But the general recommendation must be read in the context of the report as a whole. It placed the affected parties on notice of changes to come. (She makes a similar point about the DH consultation of 10 August 1995. ) To suggest that consultation is to be discounted if it elicits comments for the purposes of formulating proposals, rather than asking for comments on specific proposals that have already been formulated is to put the coach before the horses. Consultation may seek input into the formulation of proposals and/or comment on specific proposals. Indeed, the former is if anything a more proper form of consultation, since it is more likely to take account of the representations of those affected. The attempt to minimise the relevance of earlier rounds of consultations is misconceived.
47.5. At paragraphs 89-90 Ms Mellor deals with the extent to which the DH and Home Office were receptive to representations by the ODA. On Ms Mellor’s version, the DH promised to consult with the ODA when appropriate, while concealing from the ODA the nature of proposed changes already on the table. However cynical the intentions of the DH at the time, the fact is that a meeting between the chairman of the ODA and the Home secretary was agreed. While the internal Home Office memorandum dealing with the request for the meeting notes that the Home Office and DH had agreed on how the Immigration Rules were to be changed, they note also that the changes would not be laid before Parliament before 1 April 1997. They note further that the none of the above had been communicated to the ODA and that “The purpose of the meeting would therefore be to listen to their views and agree to take them into account before any changes to the Rules are laid before Parliament”.
47.6. Presumably, Ms Mellor is not suggesting that the agreement to take the views of the ODA into account before laying changes to the Rules before Parliament was simply a sham. It must be accepted that a consultation was conducted in good faith, with a proper prospect that the representations made could influence the outcome.
48. Against this background, the statement that there was no consultation on the changes made to the Immigration Rules in 1997 is demonstrably inaccurate.
49. There was in addition consultation on the revised guidance concerning the immigration and employment of overseas medical and dental students, doctors and dentist in the United Kingdom. A widely distributed letter from NHS Executive on 14 January 1997 sought comments on the proposed revised guidance by 24 February 1997. The importance of the consultation process to the formulation of the changes is reflected in the letter of 14 January which states:
“Consultation on the supplementary report confirmed the view that the current immigration arrangements worked against the interests of those overseas doctors intent on pursuing higher specialist training – including programmes leading to the award of a Certificate of Completion of Specialist Training – since there was insufficient permit-free time available. Furthermore it was considered that the need to apply on an annual basis for leave to remain in the United Kingdom was not consistent with moves to introduced planned training for overseas doctors in line with that available for EEA nationals”.
The letter goes on to set out the new arrangements which were to come into effect in April 1997.
The COPMeD Consultation
50. In addition to the major changes to the Immigration Rules affecting IMGs mentioned above, modifications have been made from time to time, on occasion so as to adjust practice to the exigencies of the NHS as they arise from time to time; and sometimes so as to bring the Immigration Rules into line with practice. Many of these adjustments have not had a significant or adverse impact on overseas qualified IMGs.
51. Paragraphs 70 to 75 of the Immigration Rules were replaced on 2 August 2005 to take account of changes in postgraduate medical training occasioned by the Calman report. The change was “led” by the Home Office, as opposed to DH, and followed consultation with the DH, GMC, General Dental Council, the BMA, COPMeD (the Conference of Postgraduate Medical Deans) and CoGPED (Committee of General Practice Education Directors).
52. One of the changes incorporated into the Immigration Rules in August 2005 was the requirement that a doctor seeking leave to enter for the purposes of undertaking postgraduate medical training had to have a letter from the relevant postgraduate dean which approved the doctor’s training plan and which recommended the duration of the leave that should be granted. In late 2005, the Overseas Doctors Sub-group of COPMeD invited comment as to how postgraduate deans should set about providing such letters.
53. On 17 November 2005, Dr David Graham, Chair of the Overseas Doctors subgroup of (COPMeD) circulated to a range of interested parties including BAPIO, BMA, and BIDA (the British International Doctors Association) a document entitled “Operational Guidelines on Permit Free Training – For Use by Postgraduate Deaneries in the United Kingdom in the light of revised Home Office and Department of Health Policy”.
54. It was introduced thus:
“The draft guidelines for the operation of Permit Free Training (PFT) set out below are issued following discussions with, and with the support of, the Home Office and Department of Health. It is proposed to bring them into force on 1st January 2006, and urgent views on them are therefore sought…”
55. Comments were required by 8 December 2005, on which date Dr Mehta responded on behalf of BAPIO.
56. The BAPIO response deals in detail with the proposed guidelines – welcoming some, expressing reservations about others, and suggesting certain modifications. It refers to a meeting between representatives of BAPIO and the Minister for Immigration and Nationality, Mr Tony McNulty in October 2005. The meeting in question took place on 12 October 2005. On the following day, 13 October, Dr Mehta wrote to Mr McNulty to thank him for his time.
57. Mr McNulty responded on 27 October 2005. The letter records what was discussed at the meeting, and states:
“As you are aware, the changes made in July mean that all those applying for leave as a Postgraduate Doctor or Dentist must submit a letter of recommendation from the relevant Postgraduate Dean. This will include a recommendation for the length of leave that should be granted. We discussed the guidance that COPMeD are currently finalising to give further advice to Deans on how much leave they should recommend.
As we mentioned at the meeting, Home Office officials met with COPMeD on 14th October. COPMeD have written their guidance for the Postgraduate Deans and hope to publish it by the end of the month. This will clarify how much leave Deans should recommend…
When this is published, we will ensure that our guidance, both the IND website and the Working in the UK website, is fully updated to reflect it. This will ensure that it is clear to everyone exactly what the requirements are, both in terms of the immigration provisions and how much leave a Postgraduate Dean is likely to recommend.
Your paper also suggests that some doctors are being asked to go back to their country of origin when applying to change the basis of their stay to leave in a different category, As you know, we brought the provisions for doctors taking the PLAB Test and undertaking periods of clinical attachment into the Immigration Rules in March this year. This was specifically to make it clear that doctors in either of these categories are able to change the basis of their stay in the UK to take a suitable training or employment post, including changing their leave to that as a Postgraduate Doctor or Dentist or as a work permit holder. They will not be asked to leave the UK to make this change.
When we amended the provisions for Postgraduate Doctors and Dentists in July, we specified who would be able to switch into this category of leave without having to leave the UK. Doctors in the UK as a student, to take the PLAB Test or to undertake a period of clinical attachment and those here as a work permit holder can switch into leave as a Postgraduate Doctor or Dentist.”
There was nothing in this letter to suggest that the abolition of PFT for overseas qualified doctors was being considered – the indications were that it was being tightened up and refined, but not abandoned.
58. The revised Guidelines which emerged from the COPMeD consultation process and were distributed on 13 January 2006 were to similar effect (Mehta 1/49/46-1/51/54). The covering letter (RM1 1/185) was introduced thus:
“I enclose a copy of a document outlining the new guidelines for PFT training. These guidelines have been developed by the Conference of Postgraduate Deans (COPMed) and are endorsed by the Home Office and the Department of Health. The aim is that there should be a consistent approach across all the deaneries.
These guidelines are similar to those we have circulated previously, but they do make the first application for PFT rather more difficult than hitherto. The intention was to introduce them on 1 January 2006 but as there are some applications in the process of being submitted we plan to introduce them on 1 February 2006”.
59. The revised Guidelines document (RM1 1/187-190) begins as follows:
“The guidelines for the operation of Permit Free Training (PFT) set out below are issued following consultation, and are endorsed by the Home Office and Departments of Health. They should become operational on 1st January 2006, allowing a consistent approach across the UK.” (RM 1/187)
60. In the light of this circular, distributed on 13 January, indicating that the Guidelines would come into effect on 1 February, it was reasonable to expect that the revised PFT system there outlined would remain in place for some time, and would not be scrapped for overseas-qualified doctors without at least the extent of consultation that had preceded the revised guidelines. Viewed objectively, the fact that changes to the PFT system came into effect on 1 February would reasonably be taken to indicate that the system would not be abolished with respect to overseas-qualified IMGs only six weeks later.
61. The recent COPMeD consultation and the revised guidelines re-inforced the legitimate expectation of consultation before change, and in particular before adverse change. In all the circumstances, BAPIO and the doctors whom it represents had every reason to believe that the PFT system would remain in place for the time being; and that they would be consulted before it would be changed again, let alone scrapped altogether as far as overseas-qualified IMGs were concerned.
2006
62. There was accordingly a legitimate expectation on the part of BAPIO and other representative organisations that they would be consulted before changes were made adversely affecting their members (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374).
63. Contrary to that legitimate expectation, there was no effective prior consultation with BAPIO or other interested parties such as BAPIO, the British Medical Association (BMA) or the British International Doctors Association (BIDA) before the changes were announced on 7 March. It is well-established that in law what is required is that consultation should take place at a formative stage of a proposal; notice should be given of what is proposed and the reasons for the proposal so as to facilitate informed consideration and comment; adequate time and opportunity should be given to consider the proposals and make representations; and those representations should be considered with an open mind before the proposals are adopted (R v Brent London Borough Council ex parte Gunning (1985) 84 LGR 168 approved in R v London Borough of Barnet ex parte B [1994] ELR 357 at 370H-371A and at 372G per Auld LJ).
64. In the present case, there was no prior notification of the proposal and no adequate time given to make representations. There was no adequate consultation as required by law.
65. The defendants respond by denying that there is any duty to consult. The Home Office points out that there is no general practice of consultation on changes to the Immigration Rules, and that this is a matter within the discretion of the Minister. Be that as it may, the Minister’s discretion must be exercised reasonably and lawfully. If a failure to consult breaches the rights or expectations of those affected in a particular instance, a duty to consult may arise. In the present case it is submitted that the duty to consult was borne by the DH, as the public authority who was the initiator and catalyst of the 2006 changes to the Immigration Rules and guidance.
66. The Department of Health contends in the first instance that it has no legal duty to consult. According to Deborah Mellor, far from there being a precedent for consultation, the DH has tended in the past, as on this occasion, to keep such proposed changes as secret as possible and to announce them as a fait accompli. Her claims of an absence of consultation in 1997 are not borne out, however, nor does she deal with the effect of the recent COPMeD consultation and guidelines, and the reasonable expectations thereby engendered.
67. The Department of Health claims that there was in any event adequate consultation on 18 January 2001. It is said that the prospective abolition of the PFT was discussed at a meeting on 18 January between NHS Employers and interested bodies including BAPIO. The notes from the meeting briefly mention proposals for the abolition of PFT at two places, but there is no suggestion that these proposals were the subject of proper consultation, or that the abolition of the PFT was imminent. Nor do the notes reflect anything like what the law requires of a consultation exercise in these circumstances. This would include, for example, prior notification of a written proposal and the opportunity for representative bodies such as BAPIO to consult with their members whose interests would be effected, to formulate a response and to submit such representations to the decision-maker. Those who were present at the 18 January meeting could hardly be expected to respond to a proposal “on the hoof” and without consulting their own members, whose interests would be adversely affected.
68. Dr Mehta, who was present at the meeting, records in his witness statement that he clearly recalls the meeting, but recalls no discussion of the imminent abolition of the PFT. Representatives of BMA and BIDA who were also present at the meeting have said the same in discussions with Dr Mehta.
69. Even on Ms Mellor’s account of the 18 January meeting, it is clear that those present were not warned that the abolition of PFT for overseas-qualified IMGs was imminent, or that those already in the UK would be so drastically affected. Indeed, paragraph 139 of her witness statement suggests that there may have been some equivocation on this point.
70. Ms Mellor admits that the timetable for proposed changes to PFT was not disclosed at the meeting. She then states that there was agreement that something needed to be done “to better regulate the entry of IMGs into the United Kingdom. There was no suggestion that there should be any formal consultation.” There is a vast difference, however, between agreeing in principle that the influx of IMGs to the UK needs to be more effectively managed, and agreeing to specific proposals for the immediate abolition of PFT for all overseas-qualified IMGs including those already in the country under the existing dispensation. It goes without saying, moreover, that the consultation must be initiated by the decision maker – it is not for those to whom partial information is disclosed to call for formal consultation.
71. Ms Mellor reports that she attended a meeting with the Junior Doctors Committee of the BMA on 3 February 2006 at which “the proposals” were outlined in detail, and that the BMA agreed with the proposed changes. Yet the Junior Doctors Committee issued a joint press release with BAPIO on 18 April 2006 condemning the implementation of the changes without adequate consultation – particularly in relation to overseas-qualified IMGs already in the UK. It is clear from the statement of the chairman of the BMA Junior Doctors Committee in the press release that the Committee did not expect that the changes would be applied to doctors already in the UK, let alone without notice, consultation or transitional arrangements.
72. The Press Release makes it clear that BAPIO, with the support of the Junior Doctors Committee, is calling for:
72.1. overseas junior doctors who are currently working in the UK to be allowed to complete their training without a permit;
72.2. overseas doctors who are living in the UK, but are not currently employed, to be given a grace period of up to two years in which to find a training post;
72.3. Doctors who come from overseas, but who graduated from a UK medical school, to be allowed to complete all their training in the NHS, not just the two years stipulated by the new rules.
73. Had BAPIO been properly consulted before the 7 March announcement, it would have been in a position to make representations to that effect.
74. In the circumstances, the sudden abolition of the PFT system for overseas-qualified IMGs was contrary to the legitimate expectations of BAPIO and its members, and a breach of the defendants’ duty to act fairly in deciding on the future regulation of IMGs.
CHALLENGE TO THE DEPARTMENT OF HEALTH GUIDANCE ON THE IMPLEMENTATION OF THE NEW IMMIGRATION RULES
Effect on IMGs on HSMP
75. IMGs with leave under the HSMP ought not to have been affected by the abolition of PFT for overseas qualified doctors. Under the HSMP, they ought not to be restricted from competing for any doctors’ jobs on equal footing to UK/EEA nationals. They have nevertheless been faced with serious problems following the introduction of the new rules, as a result of the guidelines issued by the Department of Health (and its affiliated body “NHS Employers”) following the announcement of 7 March. The guidelines issued to all NHS employers in effect state that employers must assume that doctors on HSMP will require a work permit when the leave endorsed on their passports expires. This has caused havoc and resulted in doctors on HSMP being excluded from appointment opportunities where the appointment is for longer period than the current period of leave on their passports.
HSMP IMGs on the GP Vocational Training Scheme
76. Most immediately striking is the plight of those who applied for the GP Vocational Training Scheme (“GPVTS”). The training under this scheme may last 3-4 years for some. However the majority will not have current HSMP endorsement for that length. They may well be eligible for extension of HSMP or indefinite leave to remain but they will not have the current endorsement completing the full period. Prior to the rules being changed the current appointment cycle for GPVTS had commenced. HSMP holders were allowed to sit the ‘first stage’ of the GPVTS appointment exam but as soon as new guidelines were introduced they received letters advising them that because of the changes in rules their applications will not be allowed to progress further.
Confusion and disruption
77. It is very clear from the correspondence that the sudden announcement of the changes to the Immigration Rules, and the confusion thereby engendered has not only disrupted the lives of the IMGs affected, but has also severely inconvenienced employers. This is illustrated by the exchange of correspondence between the Home Office and Dr Andrew Skinner, Consultant Anaesthetist and deputy regional adviser for the northern region of the NHS to the Royal College of Anaesthetists the Home Office.
78. Dr Skinner set out a series of questions regarding HSMP. The response from the Home Office Customer Contact Centre made it clear that
“HSMP renewal is based on the holder being economically active and supporting themselves without recourse to public funds As such employers should be advised there is no need for the current length of a HSMP visa to be a restriction to the length of appointment to a post.” (RM1 1/80)
79. Members of BAPIO have also been in direct contact with officials at the Home Office Customer Care Centre and Employers Helpline. They questioned the accuracy of the Department of Health guideline that:
“Doctors on the Highly Skilled Migrant Programme (HSMP) who are applying for new posts require sufficient leave to remain for the duration of a new contract. If their limited leave to remain would expire before the end of the contract, they will be deemed to require a work permit. This is the case for their dependents as well.” (1/64)
80. In the course of his response, an official from the Home Office Employers Helpline made the point that HSMP leave, while normally granted for not more than three years, can be extended, and that HSMP visa holders can continue to work while their application is being processed, provided that the application is made in time. Hence, he explained, doctors on HSMP are equally eligible for posts extending beyond the duration of their current leave. If they were not given equal consideration for such a post, they were subject to “discriminatory practices” (RM 1 1/63-65 and 75).
81. It is submitted that the advice from the Home Office Employers Helpline and Customer Care Centre accurately conveys the force and effect of the Immigration Rules on HSMP.
82. Nevertheless, the Department of Health guidance required doctors with leave under HSMP to be deemed to require a work permit if their limited leave to remain would expire before the end of the contract in the post for which they were applying. The Home Office has acquiesced in this. An email distributed by Rosanna Fairthorne of the Immigration and Nationality Directorate of the Home Office on 5 May 2006 concedes that employers can usually offer employment to work-seekers with leave under the HSMP without more. It states, however that in the case of IMGs, Department of Health guidelines must also be followed. Hence only those on HSMP whose limited leave extends beyond the period of the post on offer should be considered in the same way as UK/EEA nationals. Those whose limited leave would expire before the end of the post on offer should be offered the post only if there were no suitable UK/EEA candidates (that is, as if they required a work permit).
83. The position set out in the email from the Immigration and Nationality Directorate on 5 May 2006, was that, whereas ordinarily persons with leave under HSMP are entitled to be considered for posts alongside UK/EU applicants, IMGs had to show that their leave under HSMP would endure for the length of the contract, or they would be treated as if they required a work permit.
84. In other words, when they apply for the posts for which they are qualified, doctors on HSMP whose leave does not extend for the entire duration of the appointment are regarded as needing a work-permit (which they do not) and are thus effectively excluded from being considered on their merits. They are thereby denied the equal consideration to which their HSMP status entitles them. In practice they are excluded from most posts altogether.
85. This places them in an untenable, invidious “catch-22” situation – in order to extend their HSMP visa, they need to show that they are economically active. Yet they are precluded from doing so, because when they apply for posts, they are excluded because the HSMP leave does not, absent an extension, last for the entire duration of the post.
86. The initial position adopted by the defendants in the joint summary grounds was that the guidance given in Rosanna Fairthorne’s email did not accurately reflect the DH’s policy. This mistake is corrected in Ms Mellor’s witness statement at paragraphs 166-167. Ms Mellor makes it clear that the 5 May email from Rosanna Fairthorne accurately reflected the DH position at the time, and was approved by the DH.
87. Ms Mellor explains that the DH position on the guidance as follows:
“I understand that the Claimants have alleged that the guidance does not reflect the relevant provisions of the Immigration Rules. This is correct. However, it is not the case that the guidance goes beyond the Immigration Rules as a result of the DH somehow misinterpreting or misrepresenting the effect of those rules. On the contrary, a deliberate decision was taken to make the guidance more restrictive than the Immigration Rules.”
88. Ms Mellor goes on to attempt to explain why the DH adopted such an extraordinary and, it is submitted, clearly unlawful course of conduct. What emerges from Ms Mellor’s explanation is that the DH was concerned that IMGs no longer eligible for PFT would be eligible for HSMP, and would by this alternative route access training positions. It therefore wanted IMGs at postgraduate training level to be excluded from the HSMP. The Home Office did not consider such a restriction to be feasible, but the DH remained concerned that the policy aim underlying the abolition of PFT for overseas-qualified IMGs would be undermined if IMGs could still access training positions via the HSMP. This concern was underlined by the knowledge that many IMGs are highly attractive to NHS trusts because they are highly skilled and have several years’ experience in their chosen field. The concern was that IMGs would potentially displace increasing numbers of UK graduates educated and trained at the expense of the taxpayer.
89. Whatever the motive of the DH may have been, and notwithstanding that the decision to make the guidance more restrictive than the Immigration Rules applicable to IMGs on HSMP was deliberate, the fact remains that the guidance did misrepresent the Immigration Rules precisely because it was more restrictive than the Rules. This constituted an error of law.
90. Ms Mellor’s explanation serves only to confirm that the advice given in the email of 5 May 2006 propagated a deliberate misapplication of the Immigration Rules relating to HSMP. Having ascertained from the Home Office that it was not feasible by a change in the Immigration Rules to exclude IMGs at postgraduate training level from the HSMP, the DH nevertheless sought by the guidance to exclude IMGs on the HSMP from postgraduate training posts.
91. The Department of Health guidelines on HSMP doctors are wrong in law. The initial insistence by the Department of Health that the guidelines were followed, and the support of the Home Office for that stance, was an abuse of power which was discriminatory and highly prejudicial in its effect.
92. As described above, the effect of the DH guidance on the doctors affected was prejudicial and disruptive. Great difficulties were also experienced by the postgraduate deaneries and employing NHS trusts. Ms Mellor’s refusal to accept this is surprising, since it is confirmed by the evidence on which she relies. The minutes of the COPMeD Overseas Sub-group of 8 June 2006 record strong disagreement on whether doctors on HSMP should be viewed as non resident workforce. Paragraph 3 of the same minutes, under the heading “HSMP” records that
“Discussion around the table highlighted the extent and depth of the problems that individual Deaneries are having interpreting the guidelines. It is clear that there is no corporate approach in the Deaneries at the moment, with some Deaneries adhering to the Department of Health Guidance around the Home Office Regulations and others not utilising this guidance but relying simply on Home Office Regulations. In addition, it was also clear that the suggestion to postpone recruitment made by the Department of Health was not felt to be feasible in practice. Though many had delayed recruitment processes it was clear that most Deaneries were now beginning to feel major pressure from the service to provide guidance on the recruitment process or indeed to move the processes on as there is a real risk of significant vacancies for the service come the next round of the rotation.”
93. In consequence of these difficulties, and allegations that the DH position was unlawful, the Chair of COPMeD, Professor Elizabeth Paice, recommended on 10 July 2006 that postgraduate deans resume recruitment on the basis that IMGs on the HSMP were to be treated as equals of their UK/EEA counterparts. This recommendation has the tacit approval of the DH, pending the outcome of the present claim.
94. It is submitted that the DH guidance on the recruitment of IMGs on HSMP was clearly unlawful.
BREACH OF SECTION 71 OF THE RACE RELATIONS ACT
95. The changes to the Immigration Rules affecting IMGs were decided, announced and their implementation commenced without any assessment of their impact on racial equality within the NHS. This constitutes a failure to comply with section 71 of the Race Relations Act of 1976, as amended by the Race Relations (Amendment) Act 2001, by virtue of which the defendants, and in particular the Department of Health, are required to have due regard to the need to eliminate unlawful racial discrimination and to promote equality of opportunity and good race relations in the exercise of their functions.
96. Section 71 of the Race Relations Act provides:
71. Specified authorities: general statutory duty
(1) Every body or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need –
(a) to eliminate unlawful racial discrimination; and
(b) to promote equality of opportunity and good relations between persons of different racial groups.
71A. General statutory duty: special cases
(1) In relation to the carrying out of immigration and nationality functions, section 7(1)(b) has effect with the omission of the words ‘equality of opportunity and’.”
97. The defendants are persons specified in Schedule 1A to the Race Relations Act.
98. The witness statement of James Quinault on behalf of the Home Office concedes that a formal race equality impact assessment ought to have been made available before the rules change took place, in compliance with the Immigration and Nationality Directorate Associate Race Equality Scheme. He asserts, however, that the relevant issues were examined and discussed before the changes were laid before Parliament, and points out that a formal assessment has since been sent to the Commission for Racial Equality on 4 July 2006.
99. Despite his assertion to that effect, however, it is not clear that the race equality impact assessment “accurately summarises the discussions and considerations that were taken into account when assessing the potential impact of the rules change on the avoidance of unlawful racial discrimination and on good race relations”. The document fails to point out that the new rules were applied to IMGs already in the UK who had not yet found posts on PFT, with the result that they were effectively precluded from finding such posts. The document furthermore asserts, with reference to the meeting on 18 January 2006, that the DH led consultation on the change. For the reasons considered above, it is submitted that the meeting on 18 January cannot be regarded as proper consultation sufficient to discharge a legal duty to consult.
100. Significantly, the DH is silent on section 71 of the Race Relations Act. It is however the department ultimately responsible for the changes, and the ultimate employer of all the doctors affected. In the circumstances, the DH was not relieved of its duties under section 71 simply because another Department was instrumental in bringing the changes into effect. This is clearer still in relation to the effect of the guidance on IMGs on the HSMP.
101. In an appropriate case the court will issue a declaration that section 71 of the Race Relations Act has not been complied with (R (Elias) v. Secretary of State for Defence [2005] EWHC 1435 (Admin), [2005] IRLR 788 per Elias J at paragraphs 91 to 104. It is submitted that it is appropriate to do so in this case, where it appears that the DH did not take proper account of section 71 in formulating a policy which on any reasonable view has an impact on people from ethnic minorities. It is incontrovertible that the vast majority of IMGs are from the Indian sub-continent. The decision in Elias was upheld on appeal: [2006] EWCA Civ 1293. The Secretary of State did not appeal against the declaration regarding section 71 of the Race Relations Act. Nevertheless, at paragraphs 273-275 Arden LJ emphasised the importance of the duty in section 71 of the Race Relations
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