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
Surname: _________________ First Name: _____________________ Sex: __________
Nationality: ________________ Occupation: _____________________ Date and Place of Birth: _________________________________
Tel: ________________ Email: _________________________ Permanent Address: __________________________________________
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
To increase the number nurses and midwives in UK,
the English government opened a special immigration program with a VISA
facility to encourage nurses and midwives from English speaking countries to
practice their profession in UK. The work opportunity caused an overwhelming
flood of applications from English speaking countries like Philippines and
India. That is why, in February 2007, the Nursing and Midwifery Council (NMC)
increased the requirements on becoming a nurse in UK for all overseas nurses
including those that are Non English Speaking Native Overseas Registered Nurse
or Midwife Spouse of European Economic Area (NESN.O.RNM.S_EEA). Consequently,
the new regulation called Overseas Nurse Program (ONP.February2007) is
preventing the NESN.O.RNM.S_EEA to exercise nurse profession in UK. However,
due to adverse changes in the economic condition in UK, the government
cancelled the special VISA program for nurses and midwives in May 2011.
III. Statement of alleged violation of the Convention and/or Protocols and of relevant arguments
NESN.O.RNM.S_EEA claims that the application of NMC’s regulation called “Overseas Nursing Program (ONP.February2007)” to them, spouses of EEA citizens, violates the Non-Discriminative Law, Article 14 and Article 12 of the Right to Marry of the European Right of Man constitution. Further, NESN.O.RNM.S_EEA, through this document contest NMC’s ONP.February2007 regulation requiring them to go through the same regulatory process in practicing their profession in UK. As a result of the competition on linguistic capabilities between NESN.O.RNM.S_EEA and non-resident nurses from English colonies heightens, more and more evidence show that NMC highly favors non-resident English speaking nurses being better on linguistic capabilities than NESN.O.RNM.S_EEA.
IV. Summary
ONP.February2007, a regulation issued by the National Midwifery Council to establish a competitive process in recruiting the best English speaking overseas nurse around the world. The regulation does not apply to EEA nurses, so it should not also apply to NESN.O.RNM.S_EEA. The standards and requirements of the ONP.February2007 is close to being impossible to pass for the level of NESN.O.RNM.S_EEA, thus, is becoming a blatant discrimination to them; putting them on the same competition level with the non-resident nurse and midwife applicants trying to migrate in UK.
This paper also establishes that the current application of ONP.February2007 to the NESN.O.RNM.S_EEA evidently violates the articles 12 and 14 of the European Convention on Human Rights. This linguistic discrimination brought about by the implementation of OPN.February2007 currently affects several hundreds of NESN.O.RNM.S_EEA all throughout the country in terms of practice and studies. According to studies, foreign resident nurses are not submitted to the discrimination. Nurses and midwives registered prior to the implementation of ONP.Fevruary2007 as well as the English native speakers were not subjected to discrimination. However, some studies show that an important minority failed to reach 7 in IELTS writing test (TOEFL 610).
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
V. Condition of ONP.February2007 currently applied to NESN.O.RNM.S_EEA
ONP.February2007 established several conditions for passing the test and be permitted to exercise the nursing profession in England:
1. IELTS tests the person’s abilities in four different areas- reading, writing, speaking and understanding. The person’s skill level in each area is then graded from 1 to 9, with 1 as the lowest and 9, highest. The first condition imposed by the NMC through ONP.February2007 is the raising of the academic IELTS requirement from 5.5 out of 9 at least in all subjects (with a 6.5 overall score) to a minimum of 7 in all subjects.
http://www.nmc-uk.org/Documents/Circulars/2007circulars/NMCcircular01_2007.pdf
In comparison, the minimum IELTS grade for accepting foreign students who want to study nursing, engineer and even medicine in universities in England is 5.5 out of 9. On the average, the accepted foreign students’ score ranges from 5.5 to 6.5. At grade 7.0 universities would lack foreign students among their ranks. Due to legal proceedings, EEA regulated nurses obtained the right to exercise their profession in England without any EILTS test requirement. Raising the bar to grade 7.0 in all subjects makes passing virtually impossible for nurses and midwives coming from non English speaking countries, even if they underwent many years of English classes.
The first condition is just a part of the competitive process in selecting foreign nurses and midwives who wish to immigrate and practice the profession in England. However, the same condition applies to the spouses of EEA which is a clear violation to Article 14, of the Non-Discrimination Law of The European Convention on Human Rights which stipulates the right of EEA spouses to work in their area of expertise.
2. The second condition is specified on 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.”- Nursing and Midwifery Council.
According to the regulation, all applicants, including the NESN.O.RNM.S_EEA should have a minimum of 450 hours working experience in the past 3 years. The worse thing about this is that the NMC does not permit registered nurses who graduated abroad, including NESN.O.RNM.S_EEA, to practice as a trainee in an NHS hospital in England. Again, it violates Article 12 of the European Convention on Human Rights as it requires foreign spouse applicants to go back to their home countries where they graduated, and earn 12 months of working experience. The regulation separates spouses and families, violating their right to live together as families in UK.
3. The third disposition is against the legislation that overseas students have to pay three times more studying than EEA students if they have not been residents in UK for at least 3 years. The idea is that, since the non-resident students are not UK tax payers, they cannot avail of the subsidy from the government in their studies. Therefore, the extra study in UK like the ONP and Msc advanced nursing have been set, on the average, 3 times higher than EEA students for foreign or non-UK tax payers; another violation to the Article 14 European Convention on Human Rights. Considering that the spouses of the NESN.O.RNM.S_EEA students have been residents and tax payers in UK for more than 3 years, the NESN.O.RNM.S_EEA should not be treated like foreign students, and therefore should not be charged the same university fees.
4. The fourth condition holds that overseas nurses should be licensed in their home country first. It is a reasonable disposition for overseas nurse applicants who are working in their respective countries, but not to NESN.O.RNM.S_EEA residents in UK as their license are set to expire after 5 years of no practicing.
5a. The fifth disposition is a discrimination against foreign spouse residents in UK. Foreign registered nurses and midwives are allowed to take and pass an Msc or MPhil in advance nursing or midwifery in UK on the basis that they in their home country (with the condition that they can pay a prohibitive fee amounting to 11000 pounds per year instead of 4000 pounds for UK resident students). Unfortunately, this opportunity is closed to foreign spouse residents in UK. They can only exercise this right by giving up their residency in UK and go back to their home country to apply to study in UK; another violation to Article 12 of the European Convention on Human Rights, Right to marry as it would separate families. It should also be noticed that NMC registered nurses can follow Msc or MPhil with an IELTS 6 in all subjects 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, the NMC registered nurses can study to become midwives on an 18-month program, while the NESN.O.RNM.S_EEA are oblidged to undergo the full three years training from the beginning. This disposition violates the European Convention on Human Rights, Article 14 applied to the right to study. The IELTS test for these 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 nurses who are required to score 7 in all subjects.
http://www.gre.ac.uk/courses/comb/entry/overseas (Document 4)
VI. Claim
To answer to public complaints on the insufficiency of Nursing Standards in England, the NMC consults existing registered nurses and midwives and ends up with a corporatist solution. In Thailand, nurses are tested every 5 years. Many lose their license in the process. In England, there is no test for nursing and midwifery. However, the English requirements to practice their profession are increased.
1-a. Removal of the pre-selection process which is to attend the 6 months training program to become a registered nurse or midwife
The first five dispositions constitute discrimination and violation of the right of NESN.O.RNM.S_EEA to go through the process to get permit to work as a nurse in England. The removal of the pre-selection process would not give the right to practice the nursing profession in England, but would simply open it. In addition, this regulation cannot be considered as a valid argument by the Nursing & Midwifery Council in its purpose of ensuring health and wellbeing. These things are mentioned in the application form for registration which can be accessed on this page:
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 claim 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 indicated by NMC carrier adviser is for NESN.O.RNM.S_EEA is to take another 3 years or new bachelor’s degree of Nursing or Midwifery. The IELTS passing rate set by universities is at 5.5 for all subjects in average (some student has been accepted with a 4.5). Foreign students also pay the special overseas rate which is usually in excess of 10000 pounds per year (see 3).
1-b. The 1 year practice and the new 450 hours of practice condition during the last 3 years(*) should be removed or should be allowed to be completed in England in order not to violate the Article 12 (Right to marry) of the European Convention on Human Rights.
(*) This new condition has been purposely set up against NESN.O.RNM.S_EEA as the NMC realized that some rare NESN.O.RNM.S_EEA managed to get 7.0 in IELTS after 3 years intense English training. The problem with this is that, they had already forgotten most of their working knowledge in nursing the nursing profession since they concentrated so much in practicing English for three years.
NMC now requires NESN.O.RNM.S_EEA to go back to their home country and get a new job there for 450 hours in order to practice again. Do you think a hospital would recruit a nurse only for 3 months? Again, clear evidence that the rules set by the NMC are purely to bar NESN.O.RNM.S_EEA on becoming registered nurses rather than improving English Nursing standard. The NMC seems to consider that overseas nurses should be directly recruited in India and that the NESN.O.RNM.S_EEA should kept out of the register.
Equalization of the linguistic discrimination for PHd and MPhil
2-a. The second claim is about the implied restriction (**) of IELTS 7.0 in all subjects applied exclusively to NESN.O.RNM.S_EEA for university studies. NMC registered or nonresident overseas registered nurses are admitted with lower IELTS score while the NESN.O.RNM.S_EEA students are not. This restriction should be removed and that NMC should allow a different level authorization between studying and practicing.
(**) The restriction implies that as soon as NESN.O.RNM.S_EEA become residents, their degrees overseas will seize to give them the right to study in England. Instead, the regulation requires them to become NMC registered and get discriminated by imposing IELTS at the level 7 instead of 5.5 for all areas.
2-b. The 18-month pathway from nurse to midwife should be opened to overseas nurses & midwives as an alternative. Currently, NMC recognizes both nurse and midwife degrees as nurse only degree and that so many overseas midwives have to convert themselves into nurses or to undergo a full 3-year program to become a midwife again.
3. Discrimination on university fee
The third claim is that NESN.O.RNM.S_EEA can study at the same rate as the UK resident fee as soon as they have their residence permit not after 3 years especially when they are forced by the regulation to go through the whole course of their study from the beginning due to a linguistic discrimination (see 1).
4. Compensation
Demonstrating that the discrimination is corporatist and protectionist, this document also claims an indemnity of an amount equal to the salary of the unemployed NESN.O.RNM.S_EEA when they were employed in their home countries even before marrying a UK citizen and before coming to UK, or if lower, the salary of registered nurse band 5 in UK. For those who are employed, the difference in terms 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 judgment going back to the adoption of the NMC’s ONP.February2007 on to NESN.O.RNM.S_EEA.
VII. List of
documents
The documents are on the net
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)
V. Declaration and signature
It is hereby declared that, to the best of his knowledge and beliefs, the information the author has given in this document is true and correct.
Place: London, Date: May 16th.2011
Signature of the representative