In her article on Thursday, 10 September, Jane Dreaper, Health correspondent for BBC News, wrote that leading NHS figures have warned that “stringent” immigration rules are preventing them from getting enough nurses on wards in time for winter. The heads of 10 leading trusts, along with the NHS Employers Organisation have written to the home secretary to say patients are being put at risk. They argue operations might be cancelled unless nursing is listed as an occupation with official shortages.

The Home Office said some available places actually remained unused, while NHS Employers believe that 1,000 Certificates of Sponsorship, allowing nurses from outside Europe to work here, will be needed in the next six months. And it says “large numbers” of applications have already been rejected.

Chief Executive, Danny Mortimer, told BBC News: “These are nurses who’ve been recruited and could start work in the NHS shortly – but we can’t get them into the country. They are trained, registered nurses recruited from outside the EU – most typically from India and the Philippines. Their absence will be keenly felt. We are asking Theresa May to relieve the pressure on already stretched services as we head into the winter months.”

We at DavidsonMorris have been working with a client on employing nurses from overseas for their Care Group. Finally, we are at the stage where the overseas nurses attended Biometric appointments last week. There is no Priority Service available in the two countries from where the majority of the nurses were recruited – Guyana and Barbados – so the applications are all processed in Jamaica. The standard processing figures for July show that 100% of these Entry Clearance visa applications are processed in 30 days!

Our client carried out a Resident Labour Market Test and applied for four Restricted Certificates of Sponsorship. Before these were granted, the Panel requested additional information about the Organisation: size, hierarchy structure, current filled roles, current migrant workers and their roles within the organisation, vacant roles.

We hope that in the coming months the Panel will review all of the information provided which shows that the organisation has several vacancies for registered nurses and therefore may be looking for a proportion of those to be filled by suitable overseas nurses.

But, there are further considerations to keep in mind. Even though for some countries such as Guyana and Barbados there is no requirement in the immigration process for passing an English Language Test, the Nursing and Midwife Council (MNC) is insisting that overseas nurses from these countries sit and pass an English Language test for their registration to be completed.

The test centre in Trinidad and Tobago is currently offering appointments to sit the test in 2016, there is no availability to offer appointments in 2015. These are some of the issues which serve to cause delays in the recruitment of overseas nurses to the UK.

Industry Concerns

NHS Employers wrote to Immigration Minister James Brokenshire about this issue in July 2015 – but have not yet received a reply.

Mr Mortimer added: “We’re not an organisation given to this level of public protest. But the fact that 10 senior Chief Executives from different parts of England have signed this letter reflects the strength of concern across the NHS. The public might, like us, be surprised to learn that the list of occupations with shortages includes computer games designers and even ballet dancers – but not nurses.” The Migration Advisory Committee is reviewing this aspect of the immigration system but is not due to report until the end of the year. The NHS leaders argue action is needed before then – because extra UK nurses who are in training now will not be available until 2017 at the earliest.

When speaking to our clients late last year, they warned that for their field in the Care Sector the newly qualified nurses head their way in small numbers of 200 graduates. 150 go to the NHS and the remaining 50 will seek employment in Care Homes; each care home may eventually have 1 of the 50. University College London Hospitals reported about 500 vacancies at the moment, out of 3,000 total nurses. There are particular shortages in neonatal and cancer care, as well as on wards looking after children and older people. Many, but not all, of the vacancies can be filled with British nurses. Hospital staff have also visited the Philippines twice this year to recruit 168 nurses, but have only been able to get sponsorship certificates for about a dozen of them so far.

The Trust’s Director of Workforce, Ben Morrin, said: “It’s a very large source of frustration, and leaves us open to having to bring in more agency staff. This is the most significant and pressing challenge to getting the NHS workforce we need.”

A Home Office spokesman said: “NHS trusts have been given more than 1,400 Tier 2 certificates of sponsorship for nurses since April this year, but over 600 of the places allocated to them in April and May this year have been returned unused.”

The Independent Migration Advisory Committee, which took evidence from a number of NHS trusts and representative bodies from across the UK, recommended against adding nurses to the Shortage Occupation List earlier this year. “We will continue to monitor Tier 2 take-up, but have no plans to change the level of the annual limit of 20,700 places.”

Tier 2 General

Overseas nurses are sponsored under Tier 2 General for up to 5 years. Nurses who enter under Tier 2 can be paid at the Band 3 rate (please see below) until they achieve full Nursing and Midwifery Council Registration, even though this is below the minimum Tier 2 (General) threshold of £20,800. They must be sponsored to do a job as a pre-registration candidate nurse on the basis that:

  1. They obtained a Nursing and Midwifery Council permission before 30 March 2015 to undertake the Overseas Nursing Programme, and are being sponsored to undertake a supervised practice placement as part of the programme, which has been approved by the Nursing and Midwifery Council, or
  2. They will sit an Observed Structured Clinical Examination (OSCE) to obtain Nursing and Midwifery Council registration no later than 3 months after the start date on their Certificate of Sponsorship, and familiarisation training will be permitted until the application for registration with the Nursing and Midwifery Council Registration is either successfully completed, otherwise closed, or 8 months, whichever is earlier. Sponsors must provide evidence of the above, if requested to do so. They must also continue to sponsor them as a nurse after they achieve Nursing and Midwifery Council registration, and pay them at least the Band 5 rate once that registration is achieved.

Salary rates:

Band 3 and equiv. £16,271

Band 5 & equiv. £21,478

Band 6 & equiv. £25,783

Band 7 & equiv. £30,764

Band 8a & equiv. £39,239

Band 8b & equiv. £45,707

Band 8c & equiv. £54,998

Band 8d & equiv. £65,922

Band 9 & equiv. £77,850 [

Source: NHS Agenda for Change 2014]

The Resident Labour Market Test

The Resident Labour Market Test (RLMT) was put in place to protect the settled workforce and means that organisations must advertise the job for which they want to recruit in order to give settled workers a chance to apply. A foreign migrant can only be recruited if:

  1. An organisation has completed an RLMT in accordance with this guidance, and can show that no suitable settled worker is available to fill the job, or
  2. The job is exempt from the resident labour market test.

A suitable settled worker means any settled worker who has the skills and experience an organisation is seeking. If you find that you have more than one candidate with all the necessary skills and experience for which an organisation has advertised. Home Office guidance states that where one of the applicants is a settled worker and the other is a migrant, the organisation must appoint the settled worker even if the migrant is more skilled or experienced. The only exception is if the job falls within one of the PhD SOC codes.

The RLMT ensures that there are no suitable workers already living permanently in the UK and that the position being advertised is a genuine vacancy. For these purposes, the Home Office has also introduced the ‘Genuineness Test’. A genuine vacancy is one which:

  1. Requires the jobholder to perform the specific duties and responsibilities for the job and meets all of the requirements of the tier and category. If you have already assigned a CoS the vacancy must be for the duration of the CoS; and
  2. Does not include dissimilar and/or lower-skilled duties

Some examples of vacancies that are not considered to be genuine include:

  • one which contains an exaggerated or incorrect job description to deliberately make it appear to meet the requirements of the Tier and category when it does not
  • for a job or role that does not exist in order to enable a migrant to come to, or stay in, the UK
  • advertisements with requirements that are inappropriate for the job on offer, and have been tailored to exclude resident workers from being recruited.