Confirmation that international medical graduates cannot be excluded from training posts will have significant consequences for NHS employers. Afrene Campbell explains

Medical graduates from outside the European Economic Area should not be excluded from the recruitment process for post-graduate medical training posts, following a ruling by the House of Lords in May.It was decided that the guidance had dashed the "legitimate expectations" of doctors who had been encouraged to come to this country to help staff the NHS. But how will the case affect NHS recruitment?

The case, R (BAPIO Action Ltd and Another) v Secretary of State for the Home Department and Another, concerned the status of thousands of doctors who are in Britain on highly skilled migrant visas. Some 10,000 Indian doctors and several thousand other doctors from outside the EU had applied for NHS jobs and were awaiting the outcome of the trial.

The verdict was also keenly anticipated by the 3,500 Indian nationals whose existing NHS jobs could have been reviewed as a result.

Deeper problems

The case was brought by the British Association of Physicians of Indian Origin after then health secretary Patricia Hewitt issued guidance to NHS trusts saying they should offer training posts to international medical graduates only if there were no suitable candidates in the resident labour market. This was due to concerns that the continued admittance of international graduates would lead to domestic graduates being unable to obtain such positions and therefore unable to complete their medical training in the UK.

However, many saw this as a discriminatory short-term fix to the far deeper problems caused by Modernising Medical Careers and the Medical Training Application Service.

The decision will secure the future of thousands of international medical graduates. However, with an estimated 8,000 international medical graduates in the UK under the highly skilled migrant programme, it could result in up to three applicants for each post this summer and 1,000 or more domestic graduates finding themselves without a training post at the end of the current recruitment process.

Long-term ramifications

In the longer term, the impact on NHS employers and deaneries will be largely neutralised by recent changes to immigration rules, which will, in time, prohibit international graduates with tier 1 highly skilled migrant visas from being employed in specialty training posts - although these rules will not apply to training places in shortage specialties.

However, as the recent immigration changes are being phased in gradually, their impact on the recruitment process will not be felt until 2009, at the very earliest. And the new rules will not affect international graduates who currently have leave to remain in the UK as highly skilled migrants, or those already in postgraduate posts seeking to remain in the UK in the new tier 1 category.

Around 10,000 international graduates will fall into these exempt categories, which suggests that competition for training posts will continue to be fierce for the foreseeable future, unless there are further changes in the immigration rules or another legitimate solution is reached to enable UK and EEA medical graduates to be given priority in the recruitment process. This is currently being consulted on.

Vigorous recruitment processes

Most importantly, NHS trusts will have to ensure they are more vigorous than ever in deciding on each candidate - using their credentials for the job alone, and no form of active discrimination with regards to UK or EEA candidates.

The repercussions for the Department of Health and other government departments are that if they wish to impose restrictions on the recruitment or employment of foreign nationals, other than EEA citizens, which go beyond the restrictions imposed by the immigration rules, they must persuade the Home Office to make appropriate amendments. And these must be approved by both houses of Parliament, since one of the objections to Patricia Hewitt's guidance was that it was not subject to parliamentary scrutiny.

There is, of course, still a much larger debate to be had about the numbers of doctors coming to the UK in future, but for now, this debate will not affect those already here.