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The registrar European
Court of Human Rights
Council of Europe
F-67075 Strasbourg Cedex France

 

I.                 The Parties

Applicant

English native speaker foreign registered nurse
and midwife spouse of EEA/UK citizen,
 

Representative

 

1.       Surname: ..               2. First Name: …

Sex:…

3.       Nationality: …                    4. Occupation: ..

5.       Date and Place of Birth: 

Permanent Address: ..

Tel: ++44 7906 754896 Email: …

The high contacting party

Nursing and Midwifery Council  (N.M.C.)
 23 Portland Place
W1B 1PZ, London, England
Tel: 020 7637 7181
http://www.nmc-uk.org

II. Statement of the Facts

In order to face the shortage of Nurse and Midwife, the English government organize a special immigration program with a special VISA for nurses and midwife.  The effect has been an overloaded of candidates from English speaking country like India  or Philippines and so the NMC (a) decided on February 2007 called ONP.February2007  (c)  to increase the requirement to become a nurse in UK for all overseas nurse including the NESN.O.RNM.S_EEA (b). If the allowance of new immigration VISA to overseas nurse were not adopted, it is unlikely that the N.M.C (a) would have implemented ONP.February2007 (c).  In May 2011, the change of economic condition made nurse and midwife became redundant and so the special VISA program for Nurse and Midwife has been cancelled.  ONP.February2007(c)   is now a regulation that the only effect is prevents NESN.O.RNM.S_EEA(b) to exercise the nurse profession.

 

III. Statement of alleged violation of the Convention and/or Protocols and of relevant arguments

The application of the regulation of the NMC called “Overseas Nursing Programme” regulation to the case of foreign spouse of EEA (NESN.O.RNM.S_EEA) citizen constitutes a violation of the
Non-Discrimination Law, Article 14 and 12

 

The defendant Laurent Baudry EEA citizen,  resident in England on quality of represent  of non English native speaker foreign registered nurse and midwife spouse of EEA/UK citizen referred by the acronym  NESN.O.RNM.S_EEA in the present  document, contests the fact that NESN.O.RNM.S_EEA  have to go through the same regulatory process of “Overseas Nursing Programme” called O.N.P. to get the right to work as nurse or midwife in England than regulated nurse resident in their home country and applying to get the benefit to immigrate in UK.

Summary

 

The case is that the regulation overseas nursing program of February 2007 called ONP.February2007   is new regulation of the NMC which aims to establish competitive process to recruit the best English speaking overseas nurse all around the world. This ONP.February2007   regulation is not currently applied to the EEA regulated nurse and so I consider that should not be applied to the NESN.O.RNM.S_EEA as it is a legal barrier to the exercise of the nurse and midwife profession for NESN.O.RNM.S_EEA. As it will be demonstrate, this barrier is close to impossible to pass though for most NESN.O.RNM.S_EEA. ONP.February2007 puts them on the same competitive requirement than non resident nurse and midwife trying to immigrate to UK.  I would so establish the current application of ONP.February2007   to NESN.O.RNM.S_EEA does violate the article 12 and 14 of the European Convention on Human Rights.  The linguistic discrimination of ONP.February2007 is only currently applied to the several hundreds NESN.O.RNM.S_EEA in term of practiced but also studied. Foreign resident nurse are not submitted to the discrimination in term of study. Nurse and midwife registered before ONP.2007 are not submitted to the discrimination. English native are exempted of the discrimination despite some studies showing that an important minority failed to reach 7 in IELTS writing test (TOEFL 600).

http://www.passieltshigher.com/ielts-test-tips-%E2%80%93-5-ways-to-improve-your-grammar

http://www.ets.org/Media/Research/pdf/RR-02-16.pdf

Condition of ONP.February2007 currently applied to NESN.O.RNM.S_EEA

 

The ONP.February2007 does establish several conditions to the right to pass the test to exercise the profession of regulated nurse in England. 

1 – I.E.T.S is based on four tested reading, writing, speaking and understanding and it is graded from 1 to 9.  The first condition is that the NMC changes in February 2007, the academic IELTS requirement from 5.5 out of 9 at least in all subject (with a 6.5 overall) to 7 at least in all subjects (7 overall),  

see http://www.nmc-uk.org/Documents/Circulars/2007circulars/NMCcircular01_2007.pdf

(Document 1)

 

In order to compare, university accepts foreign student to study nursing, engineer and even doctor in England with an IELTS of 5.5 to 6.5. At 7.0, they would not have many non English foreign students in their rank. The EEA regulated nurse can exercise in England without any IELTS test requirement. The level of 7 in all subjects proves in fact virtually impossible to pass from nurse/midwife originated from a non English speaking native even if they  follows many years of English classes. It is so to be understood as a part of a competitive process to select foreign nurse who wishes to immigrate in England but it can be accepted as a valid condition for spouse under the Non-Discrimination Law, Article 14, The European Convention on Human Rights who stipulates the right to work in your area of expertise. Most currently NMC registered nurse does not have IELTS 7.0 in all subject but are in the ranged of 5 in all subject (6.5 overall) as it would be seen in (5).

2 – The second condition is specified

http://www.nmc-uk.org/Registration/Joining-the-register/Trained-outside-the-EU--EEA/ (Document 2)

To apply for registration with us, you must first be registered in the country you trained in, and you must have at least 12 months of registered practice in the field of nursing or midwifery for which you want to apply.

 

To this regulation, it should also add that NESN.O.RNM.S_EEA has practiced 450 hours in the last 3 years. As the NMC does not offer the option to practice as a trainee in a NHS hospital in England for registered nurse graduated abroad, the regulation constitutes a violation of Article 12, The European Convention on Human Rights, Right to marry. It requiresforeign spouse who did not have this practice England to go back in their country of graduation to practice 12 months to get the right to present their application. In his present application, this disposition of the NMC can’t be conciliated with the right to marry and families to live together.

3 – The third disposition is against the legislation that overseas student have to pay on average three times more studying fees than  EEA student if they did not have been resident in UK for at least the last 3 years. The idea is that they were not a UK tax payer and so they can’t be subsidized by the government in their study. And so the extra study in UK like the ONP or Msc advanced nursing has been set as on average 3 times higher than EEA student in the range of the fee applied to foreigners or non UK tax payer. This disposition violates the European Convention on Human Rights. Article 14 applied to the right to study as considering that the spouse of NESN.O.RNM.S_EEA has been resident and tax payer for more than 3 years, NESN.O.RNM.S_EEA should not be treated as overseas student in term of university fees.

4 – The fourth disposition is that overseas nurse should have valid license licence in their home country. It is a reasonable disposition for overseas nurse working in their country applying to work in UK but not to NESN.O.RNM.S_EEA resident in UK as their licence is set to expire after 5 years of no practicing.

 5a - The fifth disposition is now a discrimination of foreign spouse, resident in UK against those residents abroad. Foreign registered nurse or midwife could be allowed to pass an Msc or MPhil degree in advance nursing or midwifery in UK on the based that they are registered in their country (with the condition that they can pay prohibitive fee of 11000 pounds per year instead of 4000 pounds for resident). This right is unfortunately close to foreign spouse resident in UK. They can only exercise this right by giving up their residency in UK and go back in their country to apply to study in UK. So, this regulation does also violate Article 12, The European Convention on Human Rights, Right to marry as it would separate families.

It should also be noticed that NMC registered nurse can follow Msc or MPhil with a IELTS 6 in all subject against 7 for NESN.O.RNM.S_EEA

http://www.nursing.manchester.ac.uk/postgraduate/research/midwiferymphil/?code=08928&pg=al

(Document 3 – Page 2)

5b – As a complement to the fifth disposition, NMC registered nurse can study to become midwife with an 18 months program but NESN.O.RNM.S_EEA are obliged to undergo the full 3 years training from the beginning.  This disposition violates the The European Convention on Human Rights. Article 14 applied to the right to study. The IELTS test for this university programs are from 5.5 to 6.5 in most universities and so it constitutes a strong discrimination between NESN.O.RNM.S_EEA and NMC registered nurse who are required to have 7 scores in all subjects.

http://www.gre.ac.uk/courses/comb/entry/overseas (Document 4)

 

Claim

 

To answer to the complain from the public of insufficient of the Nursing Standard in England, the NMC consults existing registered Nurse and Midwife and ends up with a corporatist solution. In Thailand, Nurses are tested every 5 years and many lose their licence in the process. In England, no nurse & midwife are tested but the English requirement to practice as a nurse is increased.

1 .a- Removal of pre-selection to attend for the 6 months training program to be a registered  nurse & midwife

The first five dispositions do constitute discrimination to the right for NESN.O.RNM.S_EEA  to enter into the process to be authorized to work as a nurse in England.

Their removal would not give the right to practice the profession of nursing in England but it would simply open it.  So, they can’t be considered as valid disposition of the Nursing & Midwifery Council  to its purpose of Safeguarding health and wellbeing.  As you can read in the form to apply for registration in UK, it is mentioned:

http://www.nmc-uk.org/Documents/Registration/Registration%20information%20trained%20outside%20Europe.pdf

 

http://www.nmc-uk.org/Registration/Joining-the-register/Trained-outside-the-EU--EEA/

Application Form ( Document 5)

 

All applicants who apply to become registered nurses with the NMC must demonstrate competence in the English language by achieving a specific mark in the International English Language Testing system (IELTS). Applicants must complete the academic version of the IELTS test and achieve a score of at least 7 (out of possible 9) on all parts of the test. For more details on this mandatory requirement please refer to www.nmc-uk.org. If you have not met this standard please do not send this request to the NMC until you have done so.

 

The first claims is direct access to an evaluating and training program like the ONP 6 months training for the NESN.O.RNM.S_EEA without condition like IELTS 7 in all subjects.

The only solution indicates by NMC carrier adviser is for NESN.O.RNM.S_EEA is to do again the 3 years to get new bachelor degree of Nursing or Midwifery. The IELTS barrier is set by universities at 5.5 for all subjects in average (some student has been accepted with a 4.5) and to pay the special overseas rate usually in excess of 10000 pounds per year (see 3). 

b. The 1 year practiced and the new 450 hours of practiced condition in the last 3 years(*) should be removed or should be offered to be done in England in the quality of trainee in order to satisfy the Article 12 (Right to marry)

(*) This new condition has been set up exclusively against NESN.O.RNM.S_EEA as the NMC realizes that some rare NESN.O.RNM.S_EEA did manage after 3 years intense English training to get IELTS 7.0 but as expect, they had forgotten all their nursing practiced (3 years without practicing). It is now require that they apply and get a new job in their country (for 450 hours only ?????) in order to practice again. Do you think that any hospital might recruit a nurse for only 3 months? Once again, it is evidence that the rules are purely to bar NESN.O.RNM.S_EEA to become registered nurse rather than improving English Nursing standard.  The NMC seems to consider that overseas Nurse should be directly recruited in India and NESN.O.RNM.S_EEA kept out of the register.

2 – Equalization of the discrimination for PHd, MPhil, professional studying on linguistic based test

 The second claim is about   the implied restriction (**) of IELTS 7.0 in all subjects is applied to exclusively to  NESN.O.RNM.S_EEA for university  study.  NMC registered or non resident overseas registered nurses are admitted with lower IELTS score. It constitutes a discrimination NESN.O.RNM.S_EEA in their right to study face to non resident overseas registered nurse and NMC registered.  This restriction should be removed and the NMC should NESN.O.RNM.S_EEA to NMC registered to study university course. NMC should allow a different level authorisation between studying and practicing.

(**) The restriction is implied as soon as an NESN.O.RNM.S_EEA became resident their overseas degree seize to give them the right to study in England. It is instead required that they became NMC registered and so they are discriminated on IELTS at the level 7 instead of 5.5 (and often lower in practiced) for all others.

3 – Universities fee discrimination

The third claim is that NESN.O.RNM.S_EEA are allowed to UK resident fee as soon as they have their residence permit not after 3 years especially if they are forced by the regulation to make the whole curses of their study from the beginning due to a linguistic discrimination (see 1).

4 – Indenisation

 Defending that the discrimination be corporatist and protectionist,  I would also like to claim an indemnity of an amount equal to the payment of the salary for unemployed NESN.O.RNM.S_EEA would enjoy in their home countries when they were employed their before marrying and coming in UK or if lower the salary of registered nurse band 5 in UK. For those who are employed, the difference in term of salary between their Band (2 or 3) and the band that they might have if they were registered (Band 5) during their term of employment. The payment of the indemnity should be established from the date of February 2007 or at least from the date of this judgement upward to the adaptation of the NMC  ONP.February2007 to NESN.O.RNM.S_EEA.

(a)    NMC: Nurse & English Councils

(b)   NESN.O.RNM.S_EEA: Non English Speaking Native Overseas registered Nurse or Midwife Spouse of European economic area

(c)    ONP.February2007: The change of regulation for the overseas nursing program established in 2007.

VII. List of documents
The documents are on internet
http://www.nmc-uk.org/Documents/Circulars/2007circulars/NMCcircular01_2007.pdf,(Document 1)
http://www.nmc-uk.org/Registration/Joining-the-register/Trained-outside-the-EU--EEA/ (Document 2)
http://www.nursing.manchester.ac.uk/postgraduate/research/midwiferymphil/?code=08928&pg=al,(Document 3 – Page 2)
http://www.gre.ac.uk/courses/comb/entry/overseas (Document 4)
http://www.nmc-uk.org/Registration/Joining-the-register/Trained-outside-the-EU--EEA/, Application Form ( Document 5)

 

VIII. Declaration and signature

I hereby declare that, to the best of my knowledge and belief, the information I have given in the present application form is correct.

Place: London

Date: May 16th.2011

 

 

 

Signature of the representative