BAPIO won the case

[PASS]

Good to know,


http://www.hindu.com/2007/11/10/stories ... 551400.htm

4 to 5 years retrospective rule is expected to have a similar fate!!

[Rog]

This is great news for the upcoming JRs against the Home Office

[joe777]

does the ruling only concern doctors who are already in the uk on HSMP?, and do doctors who are outside europe now, need a work permit to work in the uk ?

my wife is a doctor from outside europe, shes not working as a doctor yet, as she needs to pass her PLAB exams, also she has ILR, does this effect her applying for work as a doctor ??

thanks guys..

[avjones]

I've now read this judgment, and I'm not sure it's quite as definite as the newspaper article you quoted suggested. Nor does it directly affect the 4-5 year change, either.

There were 2 matters which were challenged. The first is whether in changing the Immigration Rules, the SSHD had a duty to consult the BAPIO (or others), the second was the change in the Department of Health's guidance to NHS trusts etc.

As the Court of Appeal said:

The present challenge does not seek directly to impugn the Rules. It seeks only to establish, albeit at a consequent cost to the validity of the material rule-change, a prior obligation of consultation. In my judgment, for the reasons touched on above, there is no principle of public law which immunises the Immigration Rules, or more accurately the Home Secretary, from such a challenge.

So the BAPIO wasn't arguing the rules couldn't be changed, it was arguing about the need for consultation beforehand.

The Court of Appeal ruled that there was no duty to consult on the changes to the Immigration Rules, but that the Department of Health guidelines were unlawful:

I would therefore dismiss as much of this appeal as seeks to impose a duty of consultation on the Home Office, but allow it in relation to the guidance issued by the Department of Health.

So my first impression, on reading the judgment, is that it doesn't help the 4-5 year change case at all. Rather the reverse, it damages it. But it's not directly on point.

People can read it for themselves at:

http://www.bailii.org/cgi-bin/markup.cg ... od=boolean

[vinay shanthi]

So my first impression, on reading the judgment, is that it doesn't help the 4-5 year change case at all. Rather the reverse, it damages it. But it's not directly on point.

People can read it for themselves at:

http://www.bailii.org/cgi-bin/markup.cg ... od=boolean

hi

i am a member of the legal action team of bapio

the bapio case was on many issues.

let me paste a message by bapio vice chair explaining our JR and outcome in laymans terms.

"this is just a summary of our fight in lay mans terms:

On 6th April 2006, Permit free training for IMG's was abolished by home office. They could of course continue to train and work here, but only if they could secure entry on the terms applicable to those entering in order to take paid employment. In lay mans terms they could only get training or other jobs if there were no EU nationals including UK graduates.

Department of Health soon realised that there remained open a loophole for IMG's to compete on par with EU candidates. That was the IMG's on HSMP visas. There were about 15 to 16 thousand IMG's on HSMP visas at the time. Department of Health thought of a very cunning plan. They issued guidance to NHS employers to the effect that IMGs with limited leave to remain expiring before the terminal date of any training post that was on offer should be offered the post only if the resident labour market criterion was satisfied. The validity of HSMP visas were for periods of one, two or three years. In effect it meant that none of the IMG's would be eligible for run through grades.

Our case in the high court was on three points:

i. Home office did not conduct a race equality impact assessment before they brought in these rules.

ii. Guidance issued by Department of Health to NHS employers was unlawful

iii. Home office and department of Health failed to consult the interested parties including BAPIO. This was a legitimate expectation.

We won on (i) and lost in (ii) and (iii) in the high court. We appealed against the decision. {government did not appeal against us winning on (i) so that decision still holds as a win for bapio}

(in the appeal) We won on (ii) and lost on (iii). Although we won on (i) in the high court, Justice Stanley Burton did not ask the home office to go back to the drawing board. The appeal Judge Sedley in his judgement clearly says that it was the home offices good fortune that they were not asked to go back to the drawing board.

In essence we won on HSMP issue but lost on the PFT issue. Most of the PPUD's (post plab unemployed doctors on PFT visas) who did not have jobs at the time of these changes in regulations have gone home.

Winning such a case by group representing international doctors against the system is unheard of in British history.

Dr. Satheesh Mathew

Vice chair, BAPIO"

it is our understanding from our legal opinion that the government wont be further appealing against this judgement, especially since this ruling was by an appeal bench of the high court and it was an unanimous verdict by the 3 judges.

even if they do decide to appeal, everyone can be assured that BAPIO will leave no stone unturned in fighting against this gross injustice and disregard for human rights of legal migrants.

this is further confirmed by this statement of DOH spokesperson

"BBC report : Overseas doctors win NHS ruling

http://news.bbc.co.uk/1/hi/health/7087846.stm


A Department of Health spokesperson said the ruling was "disappointing".

"It means we no longer have the option of issuing the guidance for 2008 on which we were consulting that prioritises UK medical school graduates for specialty training posts.

"We face the prospect of a large number of applicants competing for places.

"Doctors from outside Europe have made and continue to make a huge contribution to the NHS.

"The issue is not, and never has been, whether they can continue to work as NHS doctors - which they can - but whether the taxpayer should be investing in training them instead of UK medical graduates."

emphasis in the quotes has been mine. so it is clear that the government has accepted defeat on the retrospective effects on doctors on HSMP by issuing guidances by dept of health and nhsemployers.

when you read the judgement and also from people who were in the court on the day of hearing if you see the senior judges comments, it is obvious that the dept of home wasnt keen on issuing a discriminatory guidance for only doctors on hsmp as there was no legal basis for this. but the judge has clearly commented that dept of health decided to go it alone and issued the guidance effectively discriminating against doctors on HSMP. he has said the right arm of the government cant do things differently from what the left arm is doing in his comments in court when reffering to HSMPs being treated differently for employment purposes by dept of health. with this judgment that guidance by dept of health and nhsemployers has been declared illegal.

as can be seen by the DOHealth spokesperson statement on bbc link above, they now have accepted defeat and will allow access to doctors with HSMP equal access to jobs (atleast on paper )

see remedyuk statement following judgement http://www.remedyuk.org/

see BMA (official monopoly trade union for doctors) statement following judgement http://www.bma.org.uk/pressrel.nsf/wlu/ ... t&vw=wfmms

see original press release by BAPIO after judgement

http://www.bapioaction.moonfruit.com

http://www.bapio.co.uk

"from BAPIO LEGAL TEAM

BAPIO wins justice for International Medical Graduates

The British Association of Physicians of Indian Origin were exuberant after the judgement was handed down today (9th November 2007) at the High Court upholding their appeal that advice given by the Department of Health to NHS employers regarding doctors on the Highly Skilled Migrants Programme (HSMP) was not lawful.

The appeal was heard by LORD JUSTICE SEDLEY, LORD JUSTICE MAURICE KAY and LORD JUSTICE RIMER. The Lord Justices were unanimous in agreeing that the guidance issued by the Department of Health on treatment of doctors on HSMP was wrong.

Dr Raman Lakshman, Vice Chair for Policy for BAPIO said "We are absolutely delighted. This is a truly happy Diwali for thousands of doctors who have been through 18 months of unimaginable stress. Doctors on the HSMP came to the UK on the understanding they are required here and will be treated fairly. This judgment means that these International Medical Graduates can expect to be treated on merit for the 2008 recruitment process and onwards "

"This is a landmark victory for International Medical Graduates as the courts have found not only that the Home Office did not carry out a Race Impact Assessment but also the Department of Health gave incorrect guidance to NHS employers on the way these doctors are to be treated ." said Dr Satheesh Mathew, Vice Chair BAPIO (Operations). "This judgement will mean that Indian doctors and other International medical graduates in the UK will not have to pay the price for the poor workforce management of the Department of Health." He added " However we also believe that all UK graduates must be guaranteed postgraduate training."

Dr Ramesh Mehta, President of BAPIO, thanked everyone who had helped to fight the case. "The first person I would like to thank is Mr Rajendra Chaudhary whose guidance was crucial in this struggle. We would also like to thank Anthony Robinson of Linder Myers solicitors and our counsel led by Rabinder Singh QC. We also want to thank all the hundreds of doctors who contributed their hard earned money to make this fight possible" he said. He continued "We see BAPIO's role as one of advocacy for international medical graduates and ethnic minority doctors and also an organisation that will support these doctors both at time of difficulty and to acheive clinical and professional excellence."

Dr Buddhdev Pandya OBE, Corporate Advisor to BAPIO, said he was overjoyed by the ruling. He had been instrumental in setting up BAPIO Action Limited, a limited company set up specifically to look into legal avenues for unfair treatment of doctors from the Indian subcontinent. BAPIO was set up in 1998 and represents the interests of about 25,000 doctors from the Indian subcontinent who work in the NHS.

At this time of joy, BAPIO remembers with gratitude Dr Imran Yousaf who joined BAPIO in this struggle for justice and whose life was lost as a result of rules brought forth with no concern for their effects on doctors like him."

but as to how this affects other JRs on HSMP issues, only time will tell. both the remaining JRs by other organisations (notmentioning the links even if relavant here as admin told me off on a prev occassion) are due soon for hearing, one on nov 30th the other on dec 11- 12. also know that there are a couple of individuals JRs on this issue as well

have a nice day

vinay shanthi

member
- Legal action team
- Working party
- Policy advisory group
www.bapio.co.uk
www.bapioaction.moonfruit.com

ps: have included the links only because it was relavant to the issue

[joe777]

thanks for explaining it in simple english Vinay

so the only way for IMG doctors to work in the UK is thru HSMP or thru workpermit for those who are specialist consultants and are required on the workpermit job shortage list ?

I've looked into HSMP and it seems pretty dificult to get 75 points needed for HSMP, i know the Gov recently pushed the mark from 65 to 75, how many IMG doctors who just recently qualified can get anywhere near 75 points?

and will the new points system that starts in april make it even more difficult for IMG doctors?

and does the ruling only effect those on HSMP now or does it effect all future HSMP IMG doctors who come to the uk to work and want to train ?

thank you for your answer again

[vinay shanthi]

thanks for explaining it in simple english Vinay

so the only way for IMG doctors to work in the UK is thru HSMP or thru workpermit for those who are specialist consultants and are required on the workpermit job shortage list ?

I've looked into HSMP and it seems pretty dificult to get 75 points needed for HSMP, i know the Gov recently pushed the mark from 65 to 75, how many IMG doctors who just recently qualified can get anywhere near 75 points?

and will the new points system that starts in april make it even more difficult for IMG doctors?

and does the ruling only effect those on HSMP now or does it effect all future HSMP IMG doctors who come to the uk to work and want to train ?

thank you for your answer again

hi

ask your wife to join the indigo discussion group set up by bapio to help IMGs in UK . it is free to join. we have got 4200+ members. it is a forum to discuss problems faced by IMGs in uk and advice will be given by other members, any issue that affects IMGs can be discussed. you dont need to be a member of bapio to become an indigo member.

for indigo membership see (it is free for all IMGs) http://health.groups.yahoo.com/group/Indi_go/

home office was trying to portray that it will be difficult for doctors to get HSMP renewals hence they shouldnt get jobs which extend beyond duration of HSMP visa. BAPIO contested this opinion of the government. i have used the hsmp criteria and also payscales of nhs and posted a message on indigo and also for our legal team which clearly showed that each and every IMG will easily get the required 75 points. i wont post that full explanation here as it will be too long. see the relavant post on indigo. Then later during the hearing for the injunction applied by bapio after initial JR decision, the govt agreed without any arguments that it will not contest the injunction applied for by BAPIO. so BAPIO won the injunction uncontested by government and all HSMPs were allowed to apply and be considered for training jobs in recruitment round of 2007.

but i agree for someone who has just passed mbbs without any earnings HSMP will be difficult to get. but as your dependant she will have unrestricted access to employment (provided you have a valid employment visa) if she passes the PLAB test. but the job situation is tight for juniors. but people have got jobs without any experience in UK.

best of luck

vinay shanthi

[joe777]

thank you again vinay, and my wife will be joining your discussion group .

oh i really meant for those IMG doctors outside the uk, trying to get HSMP, my wife was lucky thou.

my wife has been working for the nhs for more than a year as a SATO (senior assistant tech officer) , she took the plab1 exam last month, and should know within 2wks if she passed, then if she does she will take plab part 2, her manger at work said he will help her get a clinical attachment.

but she still worried about getting a job (as a SHO) and training as most doctors are, but she worried that much, shes thinking of going back to her own country (philippines) to do training, and we didn't understand what the court case was about.

again thank you

[vinay shanthi]

thank you again vinay, and my wife will be joining your discussion group .

oh i really meant for those IMG doctors outside the uk, trying to get HSMP, my wife was lucky thou.

my wife has been working for the nhs for more than a year as a SATO (senior assistant tech officer) , she took the plab1 exam last month, and should know within 2wks if she passed, then if she does she will take plab part 2, her manger at work said he will help her get a clinical attachment.

but she still worried about getting a job (as a SHO) and training as most doctors are, but she worried that much, shes thinking of going back to her own country (philippines) to do training, and we didn't understand what the court case was about.

again thank you

passing PLAB and getting a job is a totally different ball game. people have taken up to a year to get a job, some have had to go back, the job situation is difficult. but on the other hand people have got jobs on day 1 - 2 in uk. it all depends on how experienced you are, how good your background work is, whether you have done an attachment, how much you impress the department during the attachment(people have got locum jobs without any interviews after doing attachments), how good your CV is. how you sell yourself in your job applications, CV and interviews. also depends on the competetion rate in the speciality your wife is looking out for. these things change. it is all supply and demand.

best of luck

vinay shanthi

[vinay shanthi]

by the way you and your wife need to know that passing plab her troubles wont be over.

passing PLAB will allow her to be registered as a doctor. PLAB was supposedly for the purpose of confirming the eligibilty of a foreign doctor as good enough to work in UK.

but now new exams have been introduced, requiring IMGs to pass this exam inspite of being registered as doctors. since this is required only for doctors passing their primary medical qualification before 2006, it will apply only for IMG. forget the costs of the costly PLAB exam. the new exams are still costlier !!!! another 'exam' but in reality just a rate limitting exam and money minting exercise by stealth affecting only IMGs.

http://www.foundationprogramme.nhs.uk/p ... -graduates

It is making PLAB exam a mockery . apart from the thousand or so quid you will spend on PLAB, you will end up a lot more on another exam. plus thousand or more on job applications plus some specialities like medicine ask for MRCPs etc from IMGs for which it is more exams and more costs. but this is not mandatory like the other exams.

in the link see this ...

"All clinical assessments will be held during January and February 2008 in the UK. The cost of the assessment per applicant is £1,400.00 and must be paid in full by the applicant. Applicants are responsible for all associated costs including travel, accommodation, subsistence etc.

In order to proceed with your application, you will need to send an attendance form to the Eligibility Office by 30 November 2007 stating your intention to attend the assessment. This must be accompanied by the full payment to guarantee your place at the assessment centre. If we do not receive this letter along with payment by 30 November 2007, your application will be withdrawn and no further correspondence will be entered into. On receipt of your signed attendance form and payment, we will forward details of where and when to attend, together with a receipt for payment. The attendance form will be emailed to you shortly, along with further details of the assessment.

The clinical skills assessment will assess clinical history taking and examination skills, procedural skills (including resuscitation), communication skills, diagnostic skills and management of the acutely unwell patient. This will take about two hours. The Clinical Skills team will make the full and final decision with regard to the applicant's successful completion of the clinical skills assessment. Successful applicants will be eligible to proceed with their application for the 2008 Foundation Programme.

Unsuccessful candidates will be invited to return to the UK to undertake a ward simulation exercise which would provide video evidence of their clinical performance. It should be noted that ward simulation exercises provide a detailed assessment of applicants and is highly resource intensive. This will incur a further cost to applicants of £750.00. Attendance at the ward simulation exercise is not compulsory.

Please remember to submit your payment and signed attendance form by 30 November 2007 or your application will be removed from the process and you will be unable to proceed with your application. "

i just posted this info, so that you know what else is in store for your wife and you decide your future accordingly. no point wasting time and money if you dont get anything in return. but people do get jobs, so you need to decide how much risks you will take.

what is acceptable to you and your wife might not be acceptable level of risk for others. there is no right or wrong answer ultimately everyone decides what is acceptable for them and they live with the effects of that decision.

[joe777]

this is getting out of hand, IELTS, PLAB1 and 2, and now more exams..

from the GMC website
Should IMGs apply for provisional or full registration?
This depends on the nature and extent of their postgraduate experience. If they have satisfactorily completed either Foundation Year 1 in the UK or a period of postgraduate clinical experience (for example, an overseas internship) that provides an acceptable foundation for future practice as a fully-registered medical practitioner, they can apply for full registration. If they have not, they may apply for provisional registration.

so my wife has done a year of internship, does she still need to do this foundation programme ?

[vinay shanthi]

So my first impression, on reading the judgment, is that it doesn't help the 4-5 year change case at all. Rather the reverse, it damages it. But it's not directly on point.

People can read it for themselves at:

http://www.bailii.org/cgi-bin/markup.cg ... od=boolean

hi amanda

also BAPIO case did not cover ECHR article 8 violations or even a reference to the JCHR 20th report which supported HSMPs as that report came out after BAPIO filed case. so it couldnt be included in appeal.

the HSMP issue hardly covered much of the time in court. the judges themselves pestered the govt legal team with relavant questions and the hsmp issue win was very straight forward in BAPIO case.

most of the arguments by our legal team was about the unfairness for PFT visa holders who were given the impression by uk that they would get equal opportunity and PLAB was advertised all over the world, and at its peak it was being conducted almost every other day in india and other countries around the world, this constituted enticement on false grounds to come to uk and when they spent money on the exams and passed at huge personal cost, then abruptly they were told not eligible for jobs. worst part is PLAB is still conducted in many countries when the prospect of getting jobs is bleak now. i wonder what the need is for holding these exams abroad seeing the current job situation here. it is nothing but a money minting exercise now. just like the new clinical assessment exam which need to be taken after PLAB. if there indeed is a need to have these tests then it should only be in uk, what is the need to go all over the world saying take our exams and work here, when on the other hand after taking the exams you are not allowed to work. but most of the affected candidates on PFT have already left UK, so it wont make much of a difference now. but these rules will still make it harder for spouses legally in uk on dependent visas to be economically active. and then they will blame these inactive persons for being inactive while they put every hurdle possible to prevent them working even if they will spend the rest of their life in UK. we didnt win on the consultation issue

but the vital difference in the 2 JRs run by other 2 organisations is that they have been able to include the JCHR report and article 8 ECHR violations as claims. these very issues have won numerous AIT cases as you will be aware. so i feel they have a good chance of winning as well. even if they dont win, all of them still will have recourse to AIT where many cases have been won by HSMPs

even if the JRs are lost, there is still recourse to european courts and organisation of migration dispute resolution mechanisms. ILO, commonwealth and also WTO dispute resolution mechanisms. which specifically allow complaints by individuals as well in certain cases.

we are lobbying other governments as well to initiate action on these multilateral platforms. since UK has signed up to these multilateral treaties it will be a binding party to their disputes resolution mechanisms. all these avenues are being explored and more as well.

also there are separate intergovernment treaties signed by UK with many governments including india, srilanka, phillipines etc. these avenues are also being explored for enforcing rights of migrant workers

we are in touch with our governments. these things might take time but if it works it will definitely be in our favour. after all india is one of the biggest stumbling blocks for G8 in WTO GATS negotiations in Doha round. by the way doctors are specifically mentioned as an example in explanations for WTO GATS4 agreements signed by more than 100 countries. obviously trade and services are interlinked in todays globalisation, no country can have their cake and eat it too. so if anyone wants gains in trade sector there will have to be concessions in services sector. and G8 wants health sector to be opened up in developing countries, but the interesting part begins when conversely they will have to open up services sector. hence the deadlock in WTO GATS negotiations.

so even if the ongoing JRs are not favourable for us, there are still options open that are being explored now.

also regarding doctors if you see DOH code of recruitment which was bandied about all over the world and also quoted in WHO. the same things are again asserted in 2006 scottish international recuitment code as well. i have copies of those. the UK government is clearly violating its own ethical recruitment code which it released with much fanfare and even gave lectures to the whole world on how to do things ethically. how ironic now it is not following its own code of recruitment in trying to restrict access to employment and training to already recuited workers, things which the code specifically prohibits !!! and the same code has reference to the intergovernment agreements as well, to give us added muscle to take them to the cleaners in international dispute resolution mechanisms if needed. we might not win but it wont be for lack of trying.

sorry for the long rant here.

have a nice day

vinay shanthi

[vinay shanthi]

this is getting out of hand, IELTS, PLAB1 and 2, and now more exams.. ......................

so my wife has done a year of internship, does she still need to do this foundation programme ?

she can apply for full registration (since oct 2007) after passing plab. if you dont get registered plab is only valid for 3y and later they might change rules so added risk, better get registered after passing plab, but registration is more money especially if not having a job as a doctor.

since your wife will have passed intership in phillipines. she can apply for Foundation year 2 jobs. dont know if the clinical assessment exam is compulsory for that as well. but my bet will be that it will be compulsory.

best of luck

vinay shanthi

[avjones]

Not a rant, very interesting!

it's a great case, and the result is fantastic. Rabinder Singh QC is an amazing barrister (I don't know him personally, but I've read a lot of cases he's done).

I think the HSMP JRs will be very important in the field of legitimate expectation.

[vinay shanthi]

hope the JRs turn out fine for HSMPs. but hope they go ahead in the first place with the funding problems faced by those running the JRs. with 50,000 or so HSMPs, even if 1% contribute it will be 500 people contributing to the JRs. i wish but that s not reality. but then if wishes could be horses, things would have been different. it is amazing to see the level of indifference among people as long as it is not their neck on the line. but when their bums catch fire people start moaning till eternity. if only people would work to protect their own interest in advance rather than after the house is on fire. but thats life i guess. you win some you lose some.

have a nice day

vinay shanthi

[vinay shanthi]

hi

we knew efforts were underway to appeal bapio judgement. also we know that efforts are underway to circumvent the judgement by 'other' methods in the coming months through our sources.

our efforts are underway to legally challenge any such efforts. we will fight this as required.

now we have come to know the govt is appealing house of lords directly even though the 3 judge bench refused them appeal to house of lords.

see message attached below by Dr Mehta for BAPIO

bye

vinay shanthi

Dear All,

As expected and mentioned by some of you the DH have requested the House of Lords for the permission to appeal. As you know the appeals court of 3 judges had given unanimous verdict in our favour on the HSMP issue. The bench had also refused permission to both the parties to appeal to the House of Lords. However either of the parties could directly request the House of Lords for permission to appeal. If they do get permission, which is a possibility, the appeal will be heard by a bench of 5 lords. Our legal advisors are confident that we have a very good chance to win. We have also been advised against appealing on the consultation issue which has been rejected by all the four judges so far.

Friends, we are determined to carry on our fight to the end and we hope your support will continue to be as strong as ever.

Ramesh Mehta, Satheesh Mathew, Ramganesh Lakshman, Sajayan, Buddhdev Pandya and Satwinder Basra of the Bapio Legal Action Team

Ramesh Mehta