avjones wrote:
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