DR A SEN v THE BRITISH COUNCIL [2002] UKEAT 1456_01_1211

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1456_01_1211

Case No Appeal No. EAT/1456/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

DR A SENAPPELLANT

THE BRITISH COUNCILRESPONDENT

Before

Mr Justice Burton

Date 12 November 2002

[1]APPEARANCES For the Appellant Dr P SEN (Husband) For the Respondents MR P WALLINGTON (of Counsel) Instructed by: Messrs Gouldens Solicitors 10 Old Bailey London EC4M 7NG THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This is an appeal by Dr Annapurna Sen who has been skilfully represented by her husband before us against the Decision of the Employment Tribunal sitting at Manchester, that her claim for direct and indirect race discrimination be dismissed.

[2]Dr Sen qualified in 1982, so far as her medical qualification is concerned, at the Government Medical College in Jabalpur. The British Council, which, in circumstances to which we will refer, operate a system of sponsorship which leads to exemptions for those who are seeking registration by the General Medical Council, introduced in 1997 a system of establishing, in relation to those qualified in India, which qualifications would and would not be regarded as acceptable; and they chose to rely on an article published in the National Medical Journal of India, volume 9(3) of 1996 by five distinguished members of the medical profession, the lead writer being Dr Arora, under whose name consequently the article is known.

[3]That article in its introduction recited the following:

"Undergraduate medical colleges in India have widely varying standards; some are considered to be in the international front rank and others do not have the minimal standards for training a basic doctor. This is unlike the situation in most western countries where the difference in quality between the medical colleges is small and standards are controlled by central and powerful bodies like the General Medical Council (GMC) of Britain……"

It continued:

"There has been no previous attempt to assess the quality of individual Indian medical colleges."

The authors, it seems, according to the article, obtained data on a hundred and thirty five medical colleges in India, and listed the details in the table. The conclusion as the end of the article was as follows:

"In spite of all its methodological drawbacks (which we hope will in minimized when we are provided more accurate information) we feel the overall picture we have presented is fairly accurate and that there are only about thirty medical colleges [in fact 32] in this country which provide a level of undergraduate training that should be acceptable to the general public."

[4]As we have indicated, the Appellant went to a college in Jabalpur. That college was ranked in the table to which we have referred in the Arora article as sixty-third overall out of a the total number of ranked colleges in the region of over eighty, out of the total of a hundred and thirty five. This was done on the basis of an assessment of teaching and research by reference to publications, citations and grants, and to what was called "reputation".

[5]The British Council refused sponsorship to the Appellant because she had not gained her qualification in the thirty two colleges which they adopted as their marker, by reference to the Arora article, and she complains that as a result she lost the opportunity to obtain such sponsorship from the British Council, and that this constitutes either direct or indirect discrimination. As we have indicated, both claims failed before the Employment Tribunal, and she now appeals.

[6]The Medical Act 1983 contains in section 22 the following provision relating to limited registration of persons by virtue of overseas qualifications. Section 22(1) reads as follows:

"Subject to sections 23(5) and 24 below, where a person satisfies the Registrar - (a) that he has been selected for employment in the United Kingdom or the Isle of Man as a medical practitioner in one or more hospitals or other institutions approved by the General Council for the purposes of this section; (b) that he holds, or has held, or has passed the examination necessary for obtaining some acceptable overseas qualification or qualifications; (c) that he has the necessary knowledge of English; (d) that he is of good character; and (e) that he has the knowledge and skill, and has acquired the experience, which is necessary for practice as a medical practitioner registered under this section and is appropriate in his case, he shall, if the General Council think fit so to direct, be registered under this section as a medical practitioner with limited registration. By section 22(4) of the Act "acceptable overseas qualification" is defined as meaning: "…. any qualification granted outside the United Kingdom and for the time being accepted by the General Council for the purposes of this section as furnishing a sufficient guarantee of the possession of the knowledge and skill requisite for the practice of medicine under the supervision of a person who is registered as a fully registered medical practitioner."

[7]There is a register of medical schools and colleges throughout the world which is kept by the World Health Organisation called the World Directory. The finding of fact by the Employment Tribunal in this regard is as follows:

"The World Health Organisation World Directory which was used for qualification screening was treated as merely being a list of world medical schools recognised by national governments but without any validation by the World Health Organisation itself. Its status was of little value….."

It is accepted by both parties before us, as it was below, that the naming of the medical school in the Directory is only a starting point for the purposes of section 22(1)(b). It is necessary in addition, before there is registration, for all the other ingredients to be satisfied. An applicant can, and of course very often does, obtain registration by satisfying the requirements of the General Medical Council, particularly under section 22(1)(e), by the examination route. They take a paper known as "PLAB" (Professional Linguistic Ability Board Test) which is in three parts. There is a pre-qualification linguistic test, a written paper and a clinical test, the latter two of which must be to Senior House Officer standard.

[8]As was found by the Employment Tribunal at paragraph 9(4):

"The GMC recognised that some doctors would have specialist quality in a field over some years and therefore there was merit in having a sponsorship exemption to the PLAB test. Limited registration by sponsorship placed a limitation on the training and location of the successful candidate. The training/location was limited to a specialist post in a specialist discipline and a specified hospital or hospitals. Most sponsored doctors held positions as Senior House Officers or Registrar posts and they did a great deal of diagnosis and work without direct supervision once they had been granted limited registration."

Obtaining a sponsorship from organisations such as the British Council obtained, therefore, exemption from the PLAB test, among other things.

[9]The Employment Tribunal records as follows, in relation to the British Council, in paragraph 9(5), that it promoted cultural relationships in part by bringing people to the United Kingdom to work, and that it had:

"… sponsored doctors for 20 years for limited registration. At first this was achieved by scholarship and then subsequently by client-funded training with Government agreements. More recently sponsorship has been in respect of individual applications."

In 1996, the Employment Tribunal found, at paragraph 9(6):

" there was a change in policy by the GMC for doctors who qualified overseas. The GMC requested sponsors to provide objective evidenced criteria for their sponsorship schemes by 30 June 1997. The GMC stated that the previous arrangements for grant exemptions, through sponsorships, did not provide the GMC with sufficient assurance that the interests of trainees and patients were being adequately protected."

The British Council prepared objective criteria, using its experience over fifty years to draw them up, and the Employment Tribunal made findings in paragraphs 9(7) and 9(8) as to what the British Council did, in particular their adoption of the Arora paper. The Tribunal noted that it had been provided with critical appraisals of the paper and Dr Sen has drawn our attention to those today.

[10]The GMC was informed, pursuant to its requirement that the British Council introduce these new standards, that the Council had adopted the following requirements: completion of basic specialist training in a reputable institution of at least three years' duration (four years if not preceded by an internship year after graduation) and only the top thirty-five Indian medical schools (in fact it is thirty-two) would be considered reputable. This was in response to the GMC wishing to be reassured that the British Council had in place a mechanism for selecting trainees that enabled them to assess their suitability before they travelled to the United Kingdom.

[11]It appears that the specific requirement, or condition, as to there only being certain specifying colleges or schools in a particular county, only applied to India, although there were also country-specific criteria adopted by the GMC in respect of Syria, China and Libya, which involved personal investigation by the Respondent's officers. The fact that there were these country-specific criteria, including that in relation to India, was not published on the Respondent's internal website until after the application was made by this Appellant in 2000.

[12]The Employment Tribunal records in paragraph 14 as follows, in relation to Dr Sen, that she:

"applied to the British Council for sponsorship for PLAB exemption, to give her limited registration on 13 January 2000."

She gave her details, including the fact that she qualified at the Government Medical College, Jabalpur. Professor Smith and Dr Buchanan considered her application on 25 January and concluded that the Appellant did not meet the criteria, because her medical degree was from Jabalpur. She had qualified in 1982 and had held specialist posts, but she had not undertaken any training for fourteen years. The evidence of Dr Buchanan, which was accepted by the Employment Tribunal, was that the exclusion of a graduate of Jabalpur would have applied to all candidates of whatever origin, and there was evidence, which the Tribunal accepted, that British nationals did apply from time to time from India, if they had undertaken their medical training there, and they were subject to the same analysis as India nationals.

[13]In the event, having been refused, Dr Sen did not pursue any alternative sponsorship and did not herself take the PLAB exam, which was the straightforward avenue open to her for limited registration. She left the medical profession in September 2000, when she commenced an MSc postgraduate degree in Information Systems Management.

[14]The finding of fact on the evidence by the Tribunal, to which we will return, in paragraph 9(20) of the Decision was that the sponsorship acceptance rate for Indian candidates applying to the British Council, that is candidates from India who had qualified in Indian schools, was seventy two per cent. The worldwide sponsorship rate of acceptance by the British Council for sponsorship was seventy per cent during the relevant and identical period.

[15]We turn first to the appeal which was not the main plank of the case put by Dr Sen's husband, on her behalf, in respect of direct discrimination. Section 1(1) of the 1987 Race Relations Act reads as follows:

"(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if - (a) on racial grounds he treats that other less favourably than he treats or would treat other persons"

This, of course, was not a case of employment by the British Council, it was an application for sponsorship, but it is, and was below, common ground that section 13 of the 1976 Act is applicable, so as to imply obligations upon the British Council not to discriminate under the Act. This section reads as follows: "(1) It is unlawful, in the case of an individual seeking or undergoing training which would help fit him for any employment, for any person who provides, or makes arrangements for the provision of, facilities for such training to discriminate against him " in certain relevant respects.

[16]The finding of the Employment Tribunal was that there had been no unfavourable treatment of the Appellant on racial grounds. In paragraph 10 of the Decision the Tribunal's conclusion was as follows:

"…….The Tribunal was satisfied on a balance of probabilities that the applicant's request for sponsorship was rejected because she had studied both for her undergraduate and graduate degrees at a college in India which was not within the top 32 medical institutions according to the rankings given to colleges in [what we have called the Arora paper]. The applicant's college at Jabalpur was ranked at 86 out of 96 (or 63/72) depending on the analysis process. The applicant's racial and/or national origins were irrelevant to this conclusion. The Tribunal accepted the evidence of the respondents that even if the applicant had been a white British national who had studied at that institute she would not have been granted sponsorship in the circumstances. Her race and nationality was irrelevant to the consideration. The applicant did not identify a comparator for a direct discrimination allegation. The Tribunal was satisfied that the respondents applied the agreed criteria to the assessment of medical school qualifications and country specific criteria, where agreed, in applications from anywhere in the world."

Then, after reciting certain other findings, the Tribunal stated that they were satisfied in the circumstances that the Applicant was not directly discriminated against on grounds of her race.

[17]Dr Sen has made his submissions today, based on his Notice of Appeal, in which the issue of direct discrimination does not greatly feature.

(a) of the Act) as follows:

"The British Council, in their Client Funded Training (CFT) Scheme for sponsoring Overseas Doctors, have made unique selection criteria ONLY for Indian doctors. By applying this unique criterion to Indian doctors they have segregated them and treated them less favourably than other applications from all over the world."

[18]We have been shown some British Council literature by Dr Sen which certainly, at least in relation to some of the earlier documentation, did not impress in relation to its wording. In the information brief which was supplied by the British Council, at paragraph 2, it recited, among other things, under Sponsorship Criteria, the following:

"In order to qualify for British Council sponsorship, you should have .. 1 undertaken your medical undergraduate degree and completed a one-year post-graduation internship in an approved hospital. Please note that we will ONLY accept those Indian doctors who have completed their undergraduate and postgraduate degrees or only their postgraduate degree from a selected list of Indian medical schools (Please see the attached list of medical schools)."

The list referred to uses more sensible language, it is headed up "List of Indian medical colleges accepted for British Council sponsorship" and it says:

"This note applies only to doctors from India who have qualified in an Indian medical school"

[19]In a letter from Dr Smith, dated 1 February 2000, to the Appellant, in refusing her application for sponsorship, he said this:

"One of our specific criteria is that Indian medical graduates should come from Division 1 Medical Schools as quoted in the paper for which I gave you the reference"

Plainly, "Indian medical graduates" is entirely consistent with medical graduates from Indian universities and schools, and the references to doctors from India and Indian medical schools, similarly so. Dr Sen, understandably, however objects to the use of the phraseology "Indian doctors" in the first document from which we have quoted.

[20]Plainly, all this was put before the Tribunal, but what was also before the Tribunal was the evidence of Dr Buchanan, which they accepted; and his evidence at paragraph 44 of his witness statement reads as follows:

"I firmly deny that our decision not to sponsor Dr Sen for limited registration with the GMC was based upon her race, colour, national or ethnic origin. Our decision was based upon the fact that she did not meet our criteria. Whilst these included specific criteria in relation to Indian medical schools, clearly these would apply to anyone attending such schools, regardless of their colour, race, ethnicity or nationality. Furthermore, the criteria themselves are not based upon consideration of colour, race, ethnicity or nationality but upon the quality of education provided at those medical schools. The importance of ensuring the high standard of candidates for Senior House Officer and Specialist Registrar posts is in order to protect patients receiving care from such individuals within the NHS. Moreover, I consider that this is confirmed by the following statistics. From January 2000 until June 2001 the percentage of applicants for sponsorship under this scheme from India who were successful was 72%. This compares to the percentage of applicants from all other countries who were successful, which was 70%."

We have seen the Chairman's notes relating to relevant parts of the cross-examination both of Dr Buchanan and Mr Smith and other witnesses, and there is nothing which detracts from that evidence, which was, in any event, as we have indicated, accepted by the Tribunal.

[21]The Tribunal correctly directed themselves in relation to the authority of King -v- Great Britain China Centre

[1992] ICR 516

. We can see no basis upon which the finding by the Tribunal that there was here no direct discrimination, and that there was no unfavourable treatment of the Appellant on racial grounds, could be challenged in law. No area of law is identified, and insofar as it could be alleged, which in terms, it has not been, it cannot possibly be said that the Decision of this Tribunal was perverse.

[22]We turn to the issue of indirect discrimination, pursuant to section 1(1)(b) of the Act which reads as follows:

"(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if - …… (b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but - (i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and (ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and (iii) which is to the detriment of that other because he cannot comply with it."

There are, therefore, three requirements, all of which are necessary to be established before the Appellant can prove indirect discrimination: (1) the imposition of the condition which renders it more difficult for the racial group in question to qualify than the compared group; (2) justification; where, of course the onus shifts to the discriminator, and (3) detriment. The Employment Tribunal found against the Appellant on all three heads, and Dr Sen, therefore, on behalf of his wife, needs to succeed on all three in establishing an arguable point of law before his appeal can be allowed.

[23]So far as the first question is concerned, and we should add that the Tribunal plainly directed themselves clearly and firmly in accordance with the case of Raval -v- The Department of Health & Social Security

[1985] ICR 685

, which helpfully sets out a table of ten questions which it is recommended in an indirect discrimination case that a Tribunal should follow through, as follows. At paragraph 11(k)(5), the Tribunal recorded its conclusion that: "… the comparator group was candidates from medical schools world wide." by which we understand, and it is common ground between Dr Sen and Mr Wallington who has represented the Respondent before us, as a reference to candidates for sponsorship.

[24]In his Skeleton Argument, Mr Wallington argued that it might be that the Tribunal was wrong in law in identifying that as the pool, but he has not put in any cross-appeal or Respondent's notice, and we are content to accept what Dr Sen also accepts, namely that that is the relevant pool, the candidates for sponsorship from medical schools world wide, and consequently that the comparator groups are applicants from Indian schools who will, of course, in the vast majority be Indian nationals (and for the purposes of indirect discrimination should be so accepted) on the one hand, and candidates who come from other countries on the other.

[25]Then the Tribunal asks itself the crucial questions in this regard:

"(6) Did the Tribunal find that, comparing the applicant's racial group with the others in the pool, fewer of the applicant's group met the requirement?" and their answer was: "

The Tribunal was not provided with any statistical evidence by the applicant. The statistical evidence provided by the respondents showed that the respondents sponsored 100 overseas doctors approximately each year. 72% of applicants from Indian medical schools were successful in their sponsorship applications to the respondents. The worldwide success rate for applications for sponsorship made to the respondents was 70%. The Tribunal was therefore unable to satisfy itself that the comparison of the applicant's racial group with the others in the pool showed that [fewer] of the applicant's group met the requirement. (7) Could the Tribunal conclude on the facts that the proportion of persons in the same racial group as the applicant who could comply with the conditional requirement at the material time was considerably smaller than the proportions of persons in the pool not of that group who could comply with it?" [Answer] "The Tribunal could not be satisfied on the evidence that this was established on a balance of probabilities."

[26]Dr Sen points out in his argument the fact that it is accepted by the Respondents that India was the only country in respect of which there was the particular condition that candidates would only be accepted from the thirty two top colleges as listed in the Arora paper. There was evidence that there were other country-specific methods of achieving quality control, but they did not have a similar inflexible condition, and, of course, in relation to applicants from other countries, there was no country-specific condition at all. He therefore submits that, inevitably, it would be harder for Indian doctors to surmount the hurdle.

[27]That is obviously an argument which he put to the Tribunal below, but they rejected it on the facts, they did not find anything obvious about it, and they relied upon the evidence which we have recited from Dr Buchanan, and the evidence which was referred to in their own Decision, as proving the contrary, so far as the case of difficulty of complying with the condition was concerned.

[28]It could be that the answer is that there are not many applicants from India who come to Britain from the less good schools, as categorised in the Arora paper; it could be, on the other hand, that the methods that are used to render it difficult for candidates to sponsorship from other countries to qualify are themselves restrictive in other ways; however the fact is that in relation to an application for sponsorship - which, it is accepted by both sides, is entitled to include a quality control hurdle because of the consequences of acceptance for sponsorship, in particular exemption from the PLAB test - there is in fact no greater difficulty for Indian candidates to qualify than for candidates from other countries. If anything, on average, they are more successful in achieving sponsorship. In those circumstances the Tribunal was, in our judgment, entitled to accept that evidence, and was not perverse in doing so.

[29]The arguments that have been put forward by Dr Sen include a reference to the Race Relations Code of Practice for the elimination of race discrimination, and the promotion of equality of opportunity in employment, as set out by the Commission for Racial Equality. Mr Wallington pointed out in his Skeleton Argument, and indeed, has made this good by reference to the document, that this in fact applies to employers, and the British Council, of course, may well have been employers (and, indeed have, it seems an Equal Opportunities policy so far as their own employees are concerned) but in the capacity in respect of which complaint is now being made against them, they were not acting as employers. They were, if liable at all, liable under section 13, and none of the provisions of their own Equal Opportunities policy would apply, and the Code itself could only apply, at best, by analogy, and adds nothing to the ordinary principles which would prevent them from indirectly discriminating, if such were the case.

[30]Dr Sen also referred to the fact that the criterion was, in his submission, secretly applied. He explains that in two ways:(1) that the Arora article was not actually disclosed to the General Medical Council;

(2) as we have earlier set out, as recorded by the Employment Tribunal itself, that the condition applying to the top thirty-two medical schools was, at any rate at the time the Appellant applied, not disclosed in advance of an application for sponsorship.

[31]We do not conclude, as indeed the Employment Tribunal did not conclude, that those factors are in fact material in relation to the matter we are here considering. The GMC did approve the system, which the Respondents adopted, of limiting applications for sponsorship to those from the top, as it happens, thirty it is said, but it should have been thirty two schools, albeit that the GMC did not know that this was based upon the Arora paper. That appears to us to be immaterial. So far as the applications for sponsorship are concerned, it is clearly regrettable that the position at the early stage was not made clear, because it might be, in those circumstances, that this Appellant would have been saved a great deal of heartache, and she could instead have applied for sponsorship from someone else who did not have the same requirement, if such be the case. But, if anything, as was pointed out in argument, the absence of publication of the criteria only renders it the more material that in fact, notwithstanding the existence of those criteria, seventy two per cent of Indian medical school applicants were successful during the relevant period, i.e. after allowing for the rejection of some or many of them, because they had applied, if they did, with qualifications that fell below the requirement in issue. We are therefore unpersuaded that there was any error in law or any ground for challenge in the Tribunal's conclusion that section 1(b)(i) was not satisfied by the Appellant.

[32]We turn for completeness to justification under 1(b)(ii), where there were detailed findings by the Employment Tribunal. The case made by Dr Sen on the Appellant's behalf here is not that there was no criterion adopted, and not in terms that there was a criterion adopted which was discriminatory on racial grounds. His case is that there were flaws in the Arora paper which meant that the adopted criterion should not have been treated by the Employment Tribunal as a reasonable justification for what they did.

[33]He sets out three matters in his Notice of Appeal. First, the published article on which the Respondents based their selection criteria is not meant to be applicable to applicants who qualified twelve years prior to the study. Secondly, the article on which the Respondents had based the unique selection criteria for India had never been submitted to the GMC and had never been approved or agreed by the GMC; we have already responded to that contention under a separate head, and do not deal with it further. Thirdly, the publication was full of flaws and was not a measure of "quality" doctors, but just a gradation of medical schools. He points to the two critiques of the paper which were put before the Tribunal, to which they made reference in their Decision. He also points to the words of the article itself, namely:(1) that in the article itself, it notes that some colleges which had been pre-eminent a few years earlier, like institutions in West Bengal, were not represented in the top twenty, while new institutions had attained a high overall ranking, thus suggesting that a 1996 assessment would not be of great help in relation to the quality of a relevant college in 1982; and

(2) that the article itself made clear that the assessment was not of the quality of doctors produced, in respect of which there would be inadequate records and too much controversy, but only of the institutions producing them. There was correspondence carried out by Dr Sen with one of the authors of the article in question, a Dr Sahni, in which Dr Sahni said the articles were meant to look at the status of various colleges, and were not meant to assess individual careers.

[34]The findings of the Employment Tribunal are, as we have indicated, set out at some length in paragraph 11(k)(8), which reads as follows:

"The Tribunal was satisfied on a balance of probabilities that the respondents had objectively justified the condition or requirement. The Tribunal reached this conclusion for the following reasons:- (i) The Tribunal heard oral evidence from Mr Marchant from the General Medical Council and from Dr Buchanan that the General Medical Council was the body charged with registration of medical practitioners in the United Kingdom……..Section 22 ….sets out the criteria by which the General Medical Council might grant limited registration to doctors qualifying overseas. (iii) The General Medical Council determined that in relation to criteria (e) in section 22(1) of the 1983 Act that candidates were required to pass the ……(PLAB). The General Medical Council provided two routes to exemption from this test which were created in order to enable doctors with specialist knowledge to gain limited registration. These routes were the senior doctor route which was administered by the General Medical Council itself and sponsorship under the General Medical Council Sponsorship Scheme. Sponsorship schemes involved delegation by the General Medical Council to external sponsors such as the British Council and the Royal Colleges …….. Sponsorship placed a significant responsibility upon the sponsoring authorities. (iv) The respondents devised other objective criteria where the individuals medical knowledge and skill could be assessed. The criteria devised by the respondents was agreed with the General Medical Council in relation to those from Indian medical schools………The General Medical Council acknowledged that there would be variations in overseas medical education and in some instances the standards would not necessarily be the same as those for medical education in the United Kingdom. In the absence of the standardised PLAB test the respondents devised a means of assessing competence. This included an assessment of the calibre of the institution where the individual studied……The assessment of the quality of medical education was a difficult task. There was no international data base which assessed the quality of education in medical schools. The WHO World Directory list was a data base listing medical schools without making any assessment as to quality. The respondents, taking into account resources available to them, sought objective evidence of the quality of medical education in various countries. Both Professor Smith and Dr Buchanan had 35 years' experience supervising and working with doctors who qualified overseas. They had considerable experience of working with doctors in India and their visits to medical schools in India. They were aware that the quality of Indian medical education varied significantly. Their view was supported by current medical thinking set out in the paper submitted from the Lancet in July 2001"

This is an article, in fact a news story, which we have had referred to us by Dr Sen, and which inter alia records criticism in relation to the quality of medical institutions prior to 1992.

[35]The Tribunal continued that the Respondents settled upon the Arora paper and said the following, in relation to it:

"There were limitations on the methodology which was adopted …….The Tribunal was provided with criticisms by medical academics of the methodology. The Tribunal was provided with reasoning by the respondents as to why the medical paper was relied upon. The Tribunal was informed and accepted that the teaching and research criteria were objective while the issue of reputation was more subjective. Further the Tribunal accepted the respondents' evidence that since India was a stable community the information of the medical institutions provided in the mid-1990s was applicable to the mid 1980s in those circumstances when the applicant qualified. The medical school attended by the applicant fell in Division 3 as defined in the [Arora] paper. It was not therefore a borderline medical school and the respondents were entitled to rely upon the material set out in the Journal. The respondents identified the difficulty with regard to differentiation between Indian medical colleges. If they were not able to rely upon objective analysis such as that provided in the 1996 paper they would not be able to recommend to the General Medical Council certain doctors for exemption from the PLAB test."

The Tribunal also made reference to the country-specific criteria with regard to China, Syria and Libya and reached the conclusion that the Respondents' restrictions were justified objectively.

[36]We can see no ground in law to challenge the Tribunal's conclusions. They applied the correct onus of proof; they applied the correct test of law; they took into account the critiques of the article, its own admitted shortcomings and the fact, in particular, that it was an assessment in 1996 of the standards of medical institutions between 1994 and 1996 which could only be at best a rough guide to the standards of those institutions in 1982. But it constituted, the Tribunal concluded, an objective criterion adopted as the best available for the Respondents, and not on any grounds of colour, race, nationality or ethnic or national origins. In those circumstances, we do not accept that there is a ground of challenge to this head.

[37]Finally, the Tribunal reached a conclusion on detriment in paragraph 12(9). In the circumstances, we do not need to consider the issue of any challenge to that finding, which in fact has been hardly made by Dr Sen, because it would not avail him even if he were successful in challenging the conclusion that, because his wife did not pursue the alternative route of sponsorship through the Royal College or by undertaking the PLAB test, she did not suffer any detriment. He could not in any event succeed, because of his failure to challenge successfully other grounds, and he needs to succeed on all heads in order to establish a case. In those circumstances, this appeal is dismissed.