|Home | About | Journals | Submit | Contact Us | Français|
Guidance from the Department of Health that makes it harder for doctors who trained abroad to compete with UK medical graduates for NHS training posts was ruled “unlawful and of no effect” by the Court of Appeal last week.
Lords Justices Sedley, Maurice Kay, and Rimer ruled that a government department could not impose restrictions unsanctioned by parliament which went further than the immigration rules.
The guidance to NHS employers was that doctors on the highly skilled migrant programme (HSMP) whose leave to remain in the United Kingdom was due to expire before the end date of any training post on offer, should be offered the post only if there were no suitable UK or EU candidates. The guidance was first challenged earlier this year but rejected (BMJ 2007;334:333 doi: 10.1136/bmj.39125.369178.DB).
A spokeswoman for the Department of Health said that it was considering its next move. But the ruling means that employers will be unable to apply the guidance to the January recruitment exercise as planned. Even if the House of Lords agreed to hear an appeal, there is almost no chance that it could be dealt with in time.
The court heard that one of the main reasons for the change was the increase in the number of students graduating from UK medical schools. Allowing foreign doctors to obtain training posts at previous levels would have meant that significant numbers of UK medical graduates would be unable to complete their training, and the investment in them would have been wasted.
Anthony Robinson of the law firm Linder Myers, who brought the challenge on behalf of the British Association of Physicians of Indian Origin (BAPIO), said, “As is widely acknowledged, the NHS has for many years relied upon the contribution of doctors from overseas, and in particular the Indian subcontinent, to provide a quality service in times of shortage of UK doctors.
“Now that more UK graduates are coming through, the Department of Health has been trying to get round the rights of HSMP doctors, who have already made the UK their home, because it failed to plan ahead. This judgment is welcomed by several thousand doctors working in the NHS whose careers have been under threat.”
Lord Justice Sedley said that the guidance, kept on hold pending the appeal court's ruling, directly and intentionally affected immigration law and practice by imposing employment restrictions beyond those contained in the immigration rules.
Ramesh Mehta, president of BAPIO, said, “We are absolutely delighted that at last justice seems to help overseas doctors, who have had an absolutely traumatic time for the last 18 months. We are glad that it was the unanimous verdict of three judges that the Department of Health guidelines were wrong and illegal. We now hope the department will issue very clear guidelines and that overseas doctors who are on HSMP will be treated equally on their best merits.”
Ram Moorthy, chairman of the BMA's Junior Doctors Committee, said, “Doctors on the highly skilled migrant programme came to the UK in the honest expectation of careers in the NHS. The BMA has never wavered from the view that they should be able to compete for training posts alongside their UK colleagues.
“What's crucial now is that the government produces clear guidance for international medical graduates applying for jobs next year. The chaotic implementation of the new immigration rules left overseas doctors exposed to potential discrimination.”
The judgment was a partial victory for BAPIO. The association failed in its challenge to the immigration rules themselves, which were tightened without consultation last year to abolish permit-free training for doctors who lack a right of abode in the UK. The judges ruled that there was no legal obligation to consult doctors affected in advance.