Guidance on changes to the immigration regulations for doctors in training prepared by the Junior Doctors Committee of the BMA
Updated 9 June 2006
Summary
1. On 7 March 2006 the Home Office (HO) announced that it would be making changes to the UK’s immigration rules to effect a points-based system of managed migration. Implementation of the new regulations would be staged over some period of time, but some regulations affecting postgraduate doctors would come into effect from 3 April 2006.
2. There was no consultation on this and the implementation with immediate effect means that doctors already in the UK have no time to adjust or make alternative arrangements.
3. From 3 April 2006, non-EEA or non-resident doctors will, therefore, no longer be covered by the previous postgraduate doctor and dentist category, also known as ‘permit-free’ training status. Instead, trusts will need to apply for a work permit before employing candidates not covered by any other leave to remain in the UK and demonstrate, via the resident labour market test, that there are no suitable EEA nationals to take up the post in their stead.
4. The only exemptions to this are non-EEA doctors who have graduated from UK universities, who will be eligible for the postgraduate doctor and dentist category in order to complete the foundation programme and be eligible for full registration with the GMC.
5. International medical graduates (IMGs) who have resident status in the UK, such as some refugees, will not require a work permit and should be treated equally alongside UK/EEA candidates for posts.
BMA’s position
6. The BMA is very concerned about the immediacy of the application of the new rules and the effect it will have on international doctors in training who have been led to believe there are training opportunities in the UK. In particular we are anxious about the many doctors who have been providing invaluable service within the NHS, and have families that have been living in the UK for some time who now face having to return to their countries of origin at short notice. The BMA was not consulted about the changes introduced in March, and was unaware of them until they were announced, despite the assertion by Ministers that many organisations were consulted. We believe that the Government is alluding to consultation on immigration changes that are well-publicised and will be brought in in 2007.
7. We are therefore calling for the HO and the Department of Health (DH) to implement a period of grace for IMGs already in the UK and to collaborate on the development of an action plan to provide some assistance to the future of these doctors. In addition, as we said last summer concerning SHO unemployment:
"The cycles of ‘famine’ and ‘feast’ in the number of doctors which through poor manpower planning occur over and over again in the UK must be stopped for the good of all doctors and patients.
While JDC understands that allowing unlimited training opportunities in itself is not the solution to this problem; in the short term it is essential to increase the number of doctors passing through higher specialist training to allow the expansion of the numbers of consultants and GPs that deliver service and patient care."
8. We have commissioned specialist lawyers and received clarification as to whether the way some NHS employers are interpreting the new regulations for the purposes of recruitment can be considered discriminatory, as well as advice on some other aspects of the regulation changes. Individual cases of potential discrimination are being taken up by the BMA’s askBMA service, its Regional Services and Irwin Mitchell lawyers.
Our lawyers have confirmed that doctors, as a group, have not been discriminated against, but brought into line with other migrant groups. Action by a Minister such as a change in immigration rules will not in itself be unlawful for the purposes of the Race Relations Act 1976, as acts done under statutory authority fall outside provisions of the Act. Under s29 of the Act, it is unlawful to publish an advertisement which indicates intention to discrimate. Proceedings can only be brought by the Commission for Racial Equality, and we will continue to pass to the CRE any advertisments we consider as discriminatory for enforcement as we have been doing
9. We have contacted NHS Employers about this and they also have concerns that trusts may be misinterpreting the regulations and have promised to issue prescriptive guidance to ensure that trusts do not conduct the recruitment process in a potentially discriminatory way. The guidance issued so far can be found here. If you believe you are being discriminated against in a recruitment process that does not adhere to these guidelines, please ring askBMA on 0870 60 60 828.
10. We have had a meeting with the DH,and the HO on 18 April after our request for an urgent meeting to discuss the implications of the sudden implementation. Please see here for a note of that meeting.
Problems arising from the new regulations
What we do know
11. Postgraduate doctors who have existing leave to remain will be allowed to stay and train in the UK until that leave expires. Therefore, if the post on offer will be completed within the period of the doctor’s existing leave, the employer will not need to seek permission from the Home Office for the doctor to take up the post.
12. If a post has been offered to someone, on or after 7 March, and which starts on or before 4 August 2006 who currently has leave as a postgraduate doctor but their leave will expire before the end of the post, then they will need to apply for a different category of leave to complete the post, and it is likely that the work permit system may be the most appropriate category.
13. Doctors who are undertaking a training programme as a specialist registrar or SHO which is due to continue beyond their current leave to remain can switch into the work permit system without the need for their post to be re-advertised. Employers should make their applications for work permits under these arrangements need to be submitted by the employer by 31 December 2006. Once a work permit has been secured leave to remain in the UK should then be honoured.
14. Those who have graduated from UK universities, will be granted two years permit-free training to complete the foundation programme, after which they will need a work permit to continue training in the UK. The BMA is lobbying for this to be extended for the duration of their training.
15. The majority of non-EEA nationals applying for training posts will, then, require a work permit and trusts will need to demonstrate that there are no suitable EEA nationals to take up the post in their stead.
16. Work permits are granted for the duration of the contract, up to a maximum period of five years. Presently, when the doctor moves employer as part of the training programme, the new employer should make an application to change the employer on the work permit (the advertisement section of the form does not need to be completed). However, we are told by the HO that they are working on a way to provide work permits that cover the duration of a rotation and require only a technical change of employer at each change of post.
17. In addition to a valid work permit, valid leave to remain is also required. Once the work permit is issued, the doctor will then need to apply for leave to remain as a work permit holder. If the doctor has leave under another category of the immigration rules that permits them to work they will be able to take up the post. However, if they have leave under a category that does not permit them to work they will be unable to start their post until they have been granted leave to remain as a work permit holder.
18. Not all doctors will be able to switch the basis of their stay. Those who have leave as a postgraduate doctor can switch into leave as a work permit holder. However, those with leave as a visitor or a dependant of another migrant may not be able to switch and may need to leave the UK in order to make the appropriate application for entry clearance from overseas.
19. Doctors with visitor clearance in order to take the PLAB will, however, be able to switch to work permit status ( HO guidance)
20. NHS Employers has issued guidance on its website stating that unless doctors have sufficient leave to remain to complete the post that they are applying for an employer must assume that they might require a work permit. We are aware that this is not in line with the information being provided by Work Permits UK in relation to the HSMP and we are chasing up urgent clarification on this from the HO and DH. For further information on this, please see the BMA's update for doctors on the HSMP
21. As SHO posts are to be phased out, work permits for SHO posts will not be granted beyond 10 August 2007.
22. Employers are responsible for applying for work permit and for paying their associated fees.
23. The amount of leave that can be granted to undertake clinical attachments is now limited to six weeks at a time, or six months in total.
27. We have been assured that clear, centralised and prescriptive guidance will be available to employers trusts, deaneries and the public and this is awaited from NHS Employers.
Some of the issues on which we are seeking clarification
24. What can and can’t trusts do legally when advertising and recruiting to posts under the new system [see paras 8, 9 and 10 above]. For instance we believe it may be discriminatory for trusts to use forms of words in job advertisements such as: ‘This post does not attract a work permit’. We are currently seeking specialist legal advice about whether trusts are able to remove doctors who require work permits who have already been selected for interview from the shortlist. We are concerned that such practices will create an unfair disadvantage against non-EEA candidates who do not require a work permit, such as some refugee doctors and those with indefinite leave to remain in the UK from their right to equal employment opportunities.
26. Whether a doctor currently on an SpR rotation without a work permit who wishes to take time out on a student visa to undertake a PhD, will have their NTN/post kept for them so that they may complete their training rotation, as with other SpRs
29. How the new regulations will affect locums.
What we think
Who needs our help and what can we do?
34. JDC has called for a period of grace in the implementation of the new rules for overseas doctors already in the UK as a stop gap measure, and this was supported by the conference of junior doctors last month. This will give people time to adjust and allow them to make arrangements around visas, jobs, training as well as time to sort out living and schooling arrangements for their families and children. The HO has agreed to look at the numbers involved and to consider exploring ways to help those who are part-way through their training achieve certain training milestones.
35. In the light of the current job situation, the employment prospects for IMGs who have not completed PLAB, or are unemployed, is very poor. To prevent more hardship, their best option is likely to be to return to their home countries to prevent any more hardship. We will be developing other help and advice for this group of doctors.
36. We will be meeting again with the DH Workforce Review Team (originally this was scheduled for the end of May, but the DH have not yet given us a firm date) to find out more information about the new recruitment processes for overseas doctors which should be in place by August 2007. It is envisaged that this new system will allow international medical graduates to apply for UK training posts from their home countries. Information about how this system will work will need to be made clear and disseminated widely.
37. Further representations need to be made to the GMC for the PLAB II examination to be held overseas to fit in with the above arrangements.
38. We are looking at the issue of the Highly Skilled Migrant Programme and the apparent "extra" rules that the DH have imposed. We are identifying a suitable case to take forward to challenge this. The Chairman of BMA Council has again written to Lord Warner, Minister for Health, asking for consistency with all other professions and asking for the HSMP programme to be run in accordance with IND regulations by all employers.
Background information
The BMA has for some time been campaigning against a system of recruiting healthcare workers from countries with a greater need and which foster false expectations of training and employment opportunities in the UK. We have highlighted the fact that this causes financial and emotional hardship, exploitation in non-standard posts and prolonged unemployment. We have been working closely with the British International Doctors Association (BIDA) to develop solutions to the problems encountered by overseas doctors in the UK.
Open competition relies on a free market economy which in turn creates a cycle of famine and feast in terms of an under- and over-supply of doctors in the workforce. At present such open competition has resulted in a large over-supply of junior doctors within the UK job market. This is why there can be as many as 1000 applicants for any SHO jobs which, within the current system, leaves the process open to unscrupulous and potentially discriminatory methods of shortlisting.
It is BMA policy that there should be good, centralised medical workforce planning in the UK, so that the number of consultants needed to provide patient care exactly matches the number of doctors being trained within the system for the future. We believe that this, coupled with new national recruitment processes with a more objective, meritocratic and equitable matching system, will remove the potential for unemployment in the UK. However, this system would rely on a managed workforce rather than one that is subject to the laws of supply and demand.
In August 2005, JDC and BIDA together published a joint position paper: ‘International medical graduates: a fairer future’ - go to the guidance now. This advocates an annual international application process which, ideally, would allow overseas doctors to apply for training posts from their home country and only leave for the UK once a job offer had been made. Overseas junior doctors would then be recruited annually on a basis of genuine workforce need.
We understand that this does not describe a system of open competition for IMGs but believe that it represents a clear, single, explicitly selective hurdle (as in most other western countries, such as the USA and Australia) which is better matched to the real opportunities available to practise. Once within the UK system IMGs would then compete with other medical graduates on a fairer, more level playing field. Since publishing our proposals last year, we understand from the Department of Health that a recruitment process along these lines should be in place by August 2007.
In the meantime our main concern is with the thousands of overseas doctors who are already in the UK struggling to find work. We will therefore be calling on the government to ensure that a fair transitional process is put in place as outlined above.
Further assistance
The Home Office website details the new regulations in its Command Paper, ‘A points-based system: making migration work for Britain’ . The Home Office can also be contacted at: public.enquiries@homeoffice.gsi.gov.uk.
The Work Permits UK website also offers information ; as does the NHS Employers website
BMA members who feel they are being discriminated against, or have experience of situations where employers are misinterpreting the new regulations should contact askBMA on 0870 60 60 828.
How you can help
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**Further information about work permit
- Work permits should be processed from between 5-15 working days.
- Applications for work permits for doctors who are currently outside the UK should be made more than six months before they are due to start work.
- Work permits for those already in the UK should be applied for before the doctor’s permission to stay in the country has expired and should be made at least one month before, but not more than three months before this date.