Gherson success in HSMP doctors challenge

Updated by Gherson on Tuesday 16 October 2007. | | | |

Three of Gherson’s clients – all of them doctors whose qualifications had been approved by the General Medical Council (the “GMC”) - have obtained extensions of their stay as highly skilled migrants following the indication that they would shortly issue applications in the Administrative Court for judicial review of the Border and Immigration Agency (“BIA”)’s decisions to refuse their extension applications. 

The Highly Skilled Migrant Programme (HSMP ) is the first measure of the government’s Points Based System  for immigration.  (The Points Based System is to be implemented in stages – the first of which is scheduled for April of 2008).  

As well as satisfying an entry clearance officer of their intention to make the UK their main home and of their ability to maintain and accommodate themselves and their dependants without recourse to public funds - in order to be admitted under the programme applicants have to score a number of points.  Following the amendment, in November of 2006, of the scoring criteria points are awarded in respect of the applicant’s qualifications and earnings, any prior UK experience as a student or an employee and their age.  

(Although this formed no part of their proposed cases on judicial review, when the doctors concerned successfully applied for entry to the UK a different set of criteria applied, whereby points were additionally awarded for work experience in the applicant’s country of origin – as well as for various other factors.  The qualifying criteria were dramatically changed in November of 2006. 

The BIA refused the doctors’ applications because in its view they had not demonstrated that they were entitled to be awarded the necessary 75 points.  In doing so the BIA took no account of the professional qualifications obtained by the doctors in their countries of origin.   These professional qualifications had been assessed by the National Academic Recognition Information Centre (NARIC) as being of a lesser standard than a UK Batchelor’s degree (which under Appendix 4 of the immigration rules would entitle an applicant to 30 points). 

This was despite the applications having been made under cover of detailed representations which pointed out that:

  •  Under the amended immigration rules the applicants were entitled to points for the qualifications they obtained in their countries of origin

  •  These qualifications had been assessed by the GMC as being equivalent to a “Bachelor’s degree”, as was clear from the doctors’ having been given Certificates of Full Registration as a Medical Practitioner.  These certificates could not and would not have been issued to the doctors unless the GMC had been satisfied that the doctors’ professional qualifications obtained in their countries of origin were equivalent to the qualifications required by any doctor granted such a certificate.  

  •  The BIA’s guidance for extension applications itself stated that the award of points for vocational and professional qualifications was to be verified “where possible, by reference to the NARIC database or the relevant professional body”.

In each of these cases the GMC was "the relevant professional body". 

It appears therefore that in ignoring the GMC’s approval of the doctors’ professional qualifications via its issue of the Certificates of Full Registration as a Medical Practitioner the BIA had failed to follow its own policy as well as unreasonably failing to give appropriate weight to the judgment of the doctors’ professional body.  These administrative decisions were therefore clearly challengeable by judicial review.

In such circumstances the BIA’s unexplained grant of the extensions sought is perhaps not surprising. 

Lawyers at Gherson have extensive experience of pursuing applications under the HSMP and as can be seen from these results, are highly competent in identifying injustices in the processing of applications made under its provisions.  Despite the Government’s claims that the processing of HSMP applications is simple – reflecting the goal of the entirety of its Points Based System – these cases indicate that adhering to the aim of “simplicity” can be at the cost both of fairness, and of the appropriate exercise of careful consideration.  

Each of Gherson’s clients is now able to continue their work treating patients in the UK.