The right prescription

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice. 22 September 2009

Dr K* a non EU national came to Danielle Cohen Immigration Solicitors having been refused leave to remain in the UK.

Dr K had been in the UK for over ten years, studying for A-levels then two medical degrees.  During this time his leave to remain was renewed on a yearly basis as long he could show progression on his courses and payment of the tuition fees.  At various points there were breaks between the periods of leave to remain as a result of administrative difficulties but these caused no problems at the time.

After completing his university studies Dr K began a compulsory 2-year foundation training programme that would eventually lead to his registration with the General Medical Council in the UK.  Thereafter he planned to complete a further 8 years of training as a surgeon before specialising. During this period he learnt that changes to the immigration rules were being made that would result in foreign doctors with indefinite leave to remain having priority in obtaining training posts. Through word of mouth and looking at the UK Border Agency website, Dr K understood that he was eligible for indefinite leave to remain, having been in the UK lawfully for a continuous period of 10 years.

He prepared the application himself and was both surprised and disappointed when his application was refused on the basis of short breaks in the continuity of his leave to remain in the UK. At this stage he had completed two of the three sections of the exams required for Membership of the Royal College of Surgeons and was now faced with serious disruption to his training plans and future prospects.  There were no postgraduate training courses in surgery in his home country: all surgeons in training there have to embark on postgraduate studies abroad, financed, as was Dr K, from their own resources or those of family and friends.

Dr K’s plight was made even worse by the fact that since his last application, the rules allowing doctors in training to remain and work in the UK had changed.   Under the new Points Based System, Tier 1 (General) he would not be eligible to remain in the UK as a post graduate doctor in training.

Dr K came to Danielle Cohen Immigration Law Solicitors for advice on how to proceed.  We submitted an appeal to the Asylum and Immigration Tribunal relying on Article 8 of the Convention on Human Rights which protects the right to private life and prohibits disproportionate interference with this right by a public authority except to the extent necessary in a democratic society in the interests of national security, public safety or the economic well being of the country,  for the prevention of disorder and crime, for the protection of health and morals or for the protection of the rights and freedoms of others.

We argued that given the investment Dr K had made in terms of his years of education and training as well as the expenditure of family and personal funds, the refusal to grant him leave to remain in order to complete his training was an unlawful interference with his Article 8 rights.

We were able to demonstrate that Dr K was a competent junior doctor with good prospects for a career in surgery.  He had the support of the clinical director of a prominent London hospital who was clear that the loss of Dr K to his unit would cause problems for him and his colleagues in trying to find a replacement of a similar calibre.  We also pointed out the inequitable result of the immigration rule changes i.e. that if Dr K was excluded from the UK and forced to make an application for entry from abroad he would not be eligible for entry despite his profession and training.

We were delighted when the Tribunal accepted our arguments under Article 8 and granted Dr K discretionary leave to remain for a further three years.

*Whilst the stories we use here are all true, the names have been changed to respect and preserve our clients’ confidentiality.