Walking the path

’s immigration rules to effect
a points-based system of managed migration. Implementation of the new
regulations would be staged, but those 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

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 ‘permit-free’ training
arrangements and trusts will need to apply for a work permit before employing
such a candidate and demonstrate 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

universities, who will be
granted two years permit-free training.

5. International medical graduates (IMGs) who have resident status in the

, such as refugees, will not
need a permit to be able to work 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 medical graduates who have
been led towards unrealistic expectations of training opportunities in the

. 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

for some time who now face
having to return to their countries of origin at short notice.

7. We are therefore calling for the Home Office and the Department of Health to
implement a period of grace for IMGs already in the

and to collaborate on the
development of an action plan to provide some assistance to the future of these
doctors.

8. We have contacted the Commission for Racial Equality for clarification of
whether the way some NHS employers are interpreting the new regulations for the
purposes of recruitment can be considered discriminatory. Individual cases of
potential discrimination are also being taken up by the BMA’s askBMA service,
its Regional Services and Irwin Mitchell lawyers.

9. We have contacted NHS Employers about this and they also have concerns that
trusts may be misinterpreting the regulations and are about to issue guidance
to ensure that trusts do not conduct the recruitment process in a potentially
discriminatory way. This guidance 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. The Department of Health, the Home Office and Work Permits UK have agreed
to our request for an urgent meeting to discuss the implications of the sudden
implementation. We will be asking them to implement a period of grace for
doctors already in the UK and will use the opportunity to clarify how the new
regulations will work and the details of transition arrangements so that we may
advise affected doctors accordingly. This meeting will take place on

18 April 2006

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

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 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 to re-advertise their post.
Applications for work permits under these arrangements need to be submitted by
the employer by

31 December 2006

14. Those who have graduated from UK universities, will be granted two years
permit-free training (presumably to allow them to complete their medical
education under the terms of the duration stated in the Medical Act and to
undertake foundation programme training) after which they will need a work
permit to continue training in the UK.

15. The majority of international medical graduates 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. 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)**.

17. In addition to a valid work permit, IMGs also need valid leave to remain.
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 they will not be able to take up the 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

in order to make the
appropriate application for entry clearance from overseas.

19. The Home Office Command Paper says that doctors with visitor clearance in
order to take the PLAB will, however, be able to switch to work permit status -
go to the Home Office guidance now

20. Doctors who have existing leave under the Highly Skilled Migrant Programme
(HSMP) and their dependants may take up any training or employment posts
without the need for a work permit or Home Office permission. But it must be
noted that they will require registration with the GMC in order to work.

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 work permit 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.

Some of the issues on which we will be 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’,
‘Applications from candidates who require a work permit to work in the UK may
not be considered if there are a sufficient number of other suitable
candidates’, and question 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 GMC-registered
HSMP doctors, refugee doctors and those with indefinite leave to remain in the

from their right to equal
employment opportunities.

25. What will happen to doctors who were appointed after 7 March and have
permit free status which will not last for the entire duration of their post.
For instance, will their employer have to re-advertise or will they be granted
a work permit, and if they are granted a work permit, will trusts be able and
willing to hold open their posts while they are applying for leave to remain
under their work permit status [see para 12 above.]

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

27. Whether clear, centralised, guidance will be available to trusts, deaneries
and the public.

28. Whether clear guidance is to be issued about which particular categories
are able to work without a work permit.

29. How the new regulations will affect locums.

30. Whether those applying for a visa under Tier 1 in the new regulations will
require a work permit — or whether the several thousand jobless overseas
doctors already in the

can now apply for Tier 1
status.

31. Whether doctors who have been granted HSMP visa status for one year will be
allowed to have this renewed for a further three years if they apply after July
2006. Or whether the renewal will only be for two years for such doctors as
outlined in the new Tier 1 category.

What we think
32. We believe job advertisements such as the examples given in para 25 above
may well be discriminatory. The Race Relations Act seems to suggest that if
exclusions stipulated on advertisements are not among those listed in Section
29 of the Act, then they can be deemed to be discriminatory.

33. Subsections 6 and 7 of the Act states:

‘When an employer wants to train someone who is not ordinarily resident in

Britain

, and who will use the skills
acquired outside

Britain

.’

However, initial enquiries with the Commission for Racial Equality suggests
that as junior doctors will be using their skills to provide service in NHS
trusts, this does not apply. It therefore seems that trusts would need to prove
that their adverts were not discriminatory in these cases rather than vice
versa.

34. We believe that there should be no differentiation in the recruitment
process between international medical graduates who have resident status and do
not require a work permit to work in the

and UK/EEA graduates. All
three groups should be treated entirely equally. Trusts only need to justify
the selection of an international medical graduate over and above a EEA
graduate for the purposes of applying for a work permit.

Who needs our help and what can we do?
35. JDC has called for a period of grace of six months in the implementation of
the new rules for overseas doctors already in the

as a stop gap measure. 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. During this time post-PLAB
doctors should continue to be allowed to move from visiting visas to work
permits. We will take this forward via the meeting with the Home Office,
Department of Health and Work Permits UK on 18 April.

36. IMGs fall into different categories including:
a. those who have not completed PLAB exams
b. those currently unemployed who either have or have not had previous
experience of working in the UK
c. those doing clinical attachments who have completed the PLAB
d. those currently in substantive stand-alone posts
e. those currently on a rotation
f. SHOs and SpRs currently training in the UK who have spent several years
working for and adding value to the NHS
g. those of overseas origin who are UK graduates
h. people undertaking research.

a. and b. — 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.

c. and d. — We are asking for a period of grace of six months for this group of
doctors so that they have time to consider their options, find a job and sort
out visas or make alternative arrangements for their futures and that of their
families.

e. — We must ensure that the transition arrangements around these doctors are
not misinterpreted, that their rotations are protected and consider what help
and advice can be given to them at the end of their training programme.
Deaneries have already expressed concern that Trusts will have difficulty in
identifying those doctors on a rotation that require them to apply for work
permits in advance of them beginning work in the new placement. Some doctors
may also need to time to make visa renewals etc.

f. — It seems unfair to disrupt the training of this group so abruptly and to
ask them to leave the country immediately after their visas expire. Many have
families, children within the

education system and spouses
with jobs in the

. They must be given time to
sort out their arrangements. We will be calling for a period of grace to be put
in place for this group.

g. — This group has been granted two years permit-free status on graduation to
complete their foundation training. We will be asking for this to be extended
to four years post-graduation. Most overseas doctors leaving the foundation
programme who are then expected to go home would not be fully equipped to pick
up their careers in their home countries. They would need to go back to the
beginning of their home system. This therefore creates a disadvantage to
overseas doctors graduating from

universities.

h. — The status of this group needs to be clarified.

37. We will be asking the Department of Health’s Workforce Review Team exactly
when the new recruitment processes for overseas doctors will be put in place.
It is envisaged that this new system will allow international medical graduates
to apply for

training posts from their home
countries. Information about how this system will work needs to be made clear
and disseminated widely.

38. 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.

39. The new arrangements allow post-PLAB doctors in the

to switch their status after a
work permit has been obtained. It has been suggested that we ask for this to be
amended to prevent doctors from taking a chance on finding work in the

. JDC has decided, however,
that this should not take place until the new overseas recruitment processes
are put in place.

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

. We have highlighted the fact
that this causes financial and emotional hardship, exploitation in non-standard
posts and prolonged unemployment.

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

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

, 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

. However, this system would
rely on a managed workforce rather than one that is subject to the laws of
supply and demand.

We have been working closely with the British International Doctors Association
to find solutions to the problems encountered by overseas junior doctors in the
UK and in August 2005 we 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

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

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

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

’ - go there now . The
Home Office can also be contacted at: public.enquiries@homeoffice.gsi.gov.uk.

The Work Permits UK website also offers information - go there now ; as does
the NHS Employers website - go there now

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.

Anyone with a general enquiry or anyone who discovers an anomaly or loophole in
the regulations, please contact info.jdc@bma.org.uk . Your personal case
histories may help us with our campaign.

How you can help
Please write to your local MP to bring it to their attention and add fuel to
the campaign.

**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

should be made more than six
months before they are due to start work.
- Work permits for those already in the

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.

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Archive for April, 2006

Interviewed by BMA News

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Link to IMG protest and Petition

BMA respnose to new Immigration rules

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