Guidance on changes to the immigration regulations for doctors in training prepared by the Junior Doctors Committee of the BMA April 2006 Summary 1. On 7 March 2006 the Home Office 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, 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 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 ‘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 UK universities, who will be granted two years permit-free training. 5. International medical graduates (IMGs) who have resident status in the UK, 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 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. 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 UK 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 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 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). 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 UK 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 UK 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 UK 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 UK 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 UK 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 UK education system and spouses with jobs in the UK. 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 UK 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 UK 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 UK 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 UK. 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 UK. 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 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. 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 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’ - go there now . The Home Office can also be contacted at: email@example.com. 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 firstname.lastname@example.org . 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 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.