Interpretation of HSMP regulations

[shreem]

As you may be aware, new immigration regulations have been introduced for overseas doctors in training, so as to require workpermit to work in the NHS.

Some doctors may be exempt from workpermit, such as HSMP or dependents, to be able to secure a job.

However, a number of NHS trusts, when considering HSMP/dependent applications, are looking at the existing leave to remain on their current visa. Say for example a HSMP holder may have an initial 2 year LTR.

For training programmes which are > 2 years, the HSMP holders are not being considered in par with UK/EEA applicants as their LTR is only for less than 2 years.

The strange fact is that most training posts for doctors is around 5 years and no HSMP holder will be able to secure the post.

Can existing HSMP holders in other employments, confirm that this is how the law is interpreted in other fields. Say for instance, no HSMP holder can be given a permanent post in any other field. Is this how it is?

We are seeking this clarification as if it is different, we are trying to seek legal help

Thanks

[Cool]

Such a position by NHS Trusts will only be ridiculous, to say the least!

As you can see from my profile, I'm in Nigeria so, I can't speak about what's happening in UK but a common understanding of HSMP can be applied.

The change for doctors is very recent and advertisements for training posts are just coming out now. Were those restrictions explicitly stated in the adverts, easily inferred from the job adverts/interviews or are you asking to prepare for possible eventuality?

If the latter is the case, I doubt if such a restriction can be applied and if it is, I expect you should easily be able to handle it legally. It's impt to note that the NHS was involved in the determination of doctors' grades for work experience scoring criteria so, the NHS definitely knows how the HSMP programme works and it's reasonable to say that engagement in a training post will satisfy requirements for extension (holding other variables constant!).

Please confirm the source of your concern.

Cool

[geriatrix]

Hi Shreem,

Have you heard of NHS Employers (nhsemployers.org) ?? NHS Employers is the employers' organisation for the NHS in England, giving employers throughout the NHS an independent voice on workforce and employment matters.

As per the FAQs on their website, this is how NHS trusts must treat HSMP visa holders:-

Ques:I currently have a visa under the 'Highly Skilled Migrants Programme'. How do the new changes affect me?

Ans: Candidates with limited leave to enter or remain who are not currently employed on a work permit (‘able to work as authorised by the Secretary of State’) and who have no endorsement in their passport prohibiting them from taking up employment, can also be considered for employment in the same way as a UK candidate.

Here's the link to the FAQs - http://www.nhsemployers.org/workforce/workforce-723.cfm

Hope this helps !!


regards

[shreem]

Thanks Cool and sushdmehta,

We are aware of the NHS employers website and their FAQ section.

Nonetheless, the trusts are intrepreting the rules as they wish and certainly have rejected a number of candiates who had already been through a step1 selection process in the GP training scheme.

We are waiting to see what transpires before taking the next step

Thanks

[shreem]

The issue with HSMP and employment of doctors is now clear.

Please see the following guidance:

http://www.nhsemployers.org/workforce/w ... uestion513


An HSMP visa holder will only be considered in par with UK/EEA applicant to be employed in a NHS training job if his/her current leave to remain is sufficient to cover the training job in total.

However, the specialist training programme is always a 5 year training programme and hence a HSMP visa will never be enough and hence despite holding a HSMP visa, the individual will only be considered on workpermit regulations ie. the resident labour search criteria will still apply.

HSMP or no HSMP, you are only appointable if no resident worker is available.

So, any doctor wishing to obtain a 5 year training programme, dont look to your HSMP status to help you out. It will not.

My question is: In other fields, are HSMP holders allowed to take up an open ended employment ie, the duration of the employment is longer than the leave to remain?

[geriatrix]

Thank you for your email.

People with valid leave under the HSMP scheme are free to take any employment without further permission from the Home Office. Employers should not use discriminatory practises against these individuals and should treat them as any other potential employee.

Leave under HSMP is granted for 1 year + three years + one year, 1 year + 4 years or 2 years + 3 years. Leave is never granted for a whole five year period. Refusing employment due to not having a full five years leave could be deemed as a discriminatory practice.

If you have been given one year's initial leave under HSMP, arrangements are in place whereby you will be given a four year extension to bring you in line with the five year stay in the UK that Indefinite Leave applicants now require.

You will be required to prove economic activity when applying for your extension.

I am not aware of any move to invalidate the status of HSMP dependants.

NHS trusts should contact the Home Office if they are unclear about
Immigration matters.

I hope this is helpful.

Regards,

Michael Shelton
Employers Helpline
Customer Service Advisor
0845 010 6677

Customer Contact Centre
Work Permits UK
Home Office
P.O. Box 3468
Sheffield
S3 8WA

Tel: 0114 207 4074
Fax: 0114 207 4000

[geriatrix]

Thank you for your email.

I have read the article you provided me a link to, and I can understand your concern regarding certain statements made.

1. 'Doctors on the Highly Skilled Migrant Programme (HSMP) who are applying for new posts require sufficient limited leave to remain for the duration of the new contract. If their limited leave to remain would expire before the end of the contract, they will be deemed to require a work permit. This is the case for their dependants as well'.

If you have valid leave under the Highly Skilled Migrant Programme, you and any of your dependants are free to take any employment without further permission from the Home Office.

Leave under this scheme is not granted for more than three years at a time (Except whereby a four year discretionary grant is given to those in certain circumstances), but it is possible to extend this leave. It is even possible to continue to work while your application for extending the leave is being processed, providing that you still have current leave when you submit your application.

Therefore anybody who has valid leave under HSMP should be considered in the same regard as any other potential employee. Should your limited leave to remain expire before a contract was to finish, you could apply to extend your leave so that you can remain in the country under the HSMP scheme and see out the rest of the contract. You are not required to change your Immigration Status to Work Permit Holder to continue employment.

2. 'Dependants of work permit holders will have to leave the UK in order to apply for leave to remain under their work permit. This is in line with existing Home Office practice on switching immigration status.'

Dependants of work permit holders are also free to take any employment without further permission from the Home Office. Dependants are also able to extend their leave as a dependant, providing that the person they are dependant on extends their leave also. If a dependant was to apply for an an alternative Immigration route that did not make them dependant on another person, this is when they would have to leave the country and seek leave to enter under their own Immigration Status.

If you require any further assistance, please feel free to contact us again.
I hope this is helpful.
Regards,

Michael Shelton
Employers Helpline
Customer Service Advisor
0845 010 6677

Customer Contact Centre
Work Permits UK, Home Office P.O. Box 3468
Sheffield S3 8WA

Tel: 0114 207 4074
Fax: 0114 207 4000

[vijuvasishta]

hello,
I am replying back to shreem's question about hsmp holders in other fields,
Definetly i am in an other field and i have a permanet position in the industry even though i have a hsmp dependent visa, i know a lot of my collegaues too who are on hsmp and are on permanent positions.