NHS staffing crisis: A critical exception to the immigration rules 

Stressed Out Healthcare Worker with flags of the United Kingdom and the European Union
© iStock/MarianVejcik/RichLegg

Staffing shortages remain a pervasive challenge for the NHS, risking patient safety, care standards and the pursuit of innovation

UK immigration lawyer and guest contributor Anne Morris considers whether measures such as the new NHS visa will help ease the crisis given the UK Government’s prevailing anti-immigration stance.

With 90% of health leaders warning that understaffing is putting patient safety and care at risk, international recruitment remains vital to meeting staffing levels in the NHS.

There are now 106,000 vacancies across the NHS in England, with over 44,000 vacancies in nursing. A report by the Health Foundation last year highlighted critical shortages in the supply of NHS staff against demand, with reducing numbers in areas such as primary and community care, nursing and mental health.

Recognising the issues, the Conservatives made the NHS a key area of focus in their 2019 election campaign.

Their manifesto pledged, for example, to fund and increase nursing numbers from 280,000 to 330,000 by 2024/25, comprising newly trained and apprentice nurses, those returning to the profession, new posts and nurses from overseas. But these commitments have yet to translate into policy, making overseas workers critical to meeting the current shortage in labour supply.

Reliance on international recruitment has always been a tenet of the NHS. According to ONS figures, there were over 1 million people (913,789 full-time equivalents) working in healthcare roles in NHS hospitals in England in March 2019: 6% were EU nationals and 8% non-EU nationals (excluding NHS infrastructure support staff).

The need to ensure public health is incontrovertible rationale that the NHS – the largest single employer in the UK, employing over a million people, five per cent of the UK’s working population – should be considered the exception to the immigration rules, which have under successive conservative governments been tightened, constraining the ability of employers to hire from overseas.

Concessions

In recognition of the critical role and contribution of overseas recruitment to the NHS, the Government deviated from its typically steadfast anti-immigration position and made specific concessions for the NHS.

In November 2019, the Government announced it would be introducing a new NHS visa. The route is being designed to ensure the NHS can employ overseas doctors and nurses on a fast-tracked basis after the end of the Brexit transition period and EU free movement on 31st December 2020.

In 2018, following successive months of the Tier 2 skilled worker visa cap being reached, and doctors being refused visas for not having enough points, the Government removed doctors and nurses from the Tier 2 visa cap. The result was a net increase of 4,000 nurses a year from outside the EEA.

The question remains, however, whether offering partial shelter for the health sector from stringent migration policy is enough to help ease chronic staffing shortages.

While the Government makes concessions for the NHS, this only works if people will want to come to the work in the UK, while the government’s stance and fuelling the hostile environment have the effect of reducing the appeal of UK.

The message to overseas workers is at best confused and at worst contradictory

Compounding the issues, the NHS faces greater global competition for workers. A global nursing shortage means the UK is competing internationally for nurses. According to OECD data, nurses in the UK are paid in line with the average UK salary but this is likely to become increasingly challenging as other countries compete and actively recruit.

Limitations of a points-based skills system

Despite these concessions, the UK immigration policy remains restrictive on health service employers when taking the wider skills and staffing needs of the NHS into consideration.

The NHS says it offers more than 350 different careers. Of these, not all are qualified medical professionals or those that would meet the skilled worker threshold under the UK immigration rules.

While non-EEA nationals can only gain permission to work in the UK where they meet the criteria under the immigration rules, EU workers have under freedom of movement been able to take up any kind of work, skilled or otherwise.

The end of EU free movement will mean EU nationals wanting to the UK after the Brexit transition period will need to apply under the same system as non-EU workers.

Boris Johnson’s initial plans for a three-tier “Australian-style” points-based system would see highly skilled individuals given fast-tracked entry, while skilled workers will be allowed to enter the UK with a job and low-skilled workers would only be able to stay if there were staff shortages. The NHS would certainly be hit hard by restricted access to the EU labour market.

Attracting the ‘brightest and best’

More than 10,000 EU nationals have already left the NHS since the Brexit referendum, including almost 5,000 nurses, compounding what was already a crisis in staffing hospitals and care homes, while those who want to remain after Brexit are required to register under the EU settlement scheme to secure their status after the end of the Brexit transition period.

Johnson’s focus on attracting the ‘brightest and best’ fails to address the true spectrum of healthcare workforce needs, with roles such as care workers and laboratory assistants falling below the current immigration skills standards.

The Government is also working on proposals to bring forward restrictions on lower skilled migrants, contrary to Theresa May’s immigration white paper which in 2018 proposed a “time-limited route for temporary short-term workers” to mitigate the “challenges faced by employers who would find it difficult immediately to adapt” to new immigration rules.

This is alarming for the NHS where lower-skilled foreign workers make up a critical part of the workforce in the NHS and social care.

Strategic concerns

There is a recognition that NHS staffing issues cannot be solved through overseas recruitment alone.

Continued staffing issues challenge the fundamentals of public health provision. While NHS employer’s firefight to meet minimum staffing levels, the focus of UK healthcare provision remains on treatment rather than prevention.

There are also implications for key strategic priorities such as the NHS Long Term Plan, which was developed to ensure progress within the NHS “so that in 10 years’ time we have a service fit for the future”.

Specific measures such as moving care out of hospitals and closer to homes are fast becoming out of reach if the staffing required to implement such measures cannot be secured.

Another issue exacerbating reliance on overseas workers is poor staff retention across the NHS. Despite specific measures being put in place under the Long Term Plan, staff turnover levels are at a five-year low.

The solution, it seems, lies in bringing together improvements in the resident UK labour market through education and training strategies, while recruiting from overseas and attracting and retaining more nurses in public health.

Beyond 2021

The reality is that the Government’s immediate focus and attention is on preparing for 1st January 2021 – building a new immigration system centred on skills, negotiating EU exit terms and touting for new trade deals.

While other NHS skills initiatives and strategies are launched and implemented, overseas recruitment remains an immediate and tried and tested solution that should be held above any political wrangling’s or playbook. A coherent set of rules are needed for NHS recruitment that aligns Home Office policy with public healthcare workforce planning.

Whatever form the new immigration system takes, the Government has a responsibility to public health to ensure barriers are not put in place that hinders the employment of overseas workers in the NHS.

Anne Morris
UK immigration lawyer
MD DavidsonMorris

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