Labor and social standards post-Brexit. The European perspective

Giacomo Di Federico

Professor of EU Law, Department of Legal Studies, University of Bologna.

Preliminary remarks

Free movement of health professionals has progressively gained momentum in the EU. Now that we have avoided a hard Brexit scenario, I thought it might be interesting to consider the impact of the EU-UK Trade and Co-operation Agreement (TCA) on the free movement of health professionals in light of the pre-Brexit mobility trends.  

Under the Withdrawal Agreement, all EU/EEA workers already resident in the UK will have to apply for the EU Settlement Scheme before the 1 July 2021. Those who intend to travel to the UK to work in the healthcare sector after 1 January 2021, instead, will all have to comply with domestic immigration rules. In truth, it appears that these categories of workers will have preferential access in the points-based system (Health and Care Worker Visa). This means, inter alia, being exempted from the Immigration Health Surcharge pursuant to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020. Notwithstanding these adjustments, it is clear that international recruitment is paramount for the functioning of the NHS. In this regard, suffice it to recall that approximately 13% of those employed by the NHS are not British, with around 6% coming from EEA countries, and that according to the UK government it will be necessary to recruit from abroad an additional 12,000 nurses by 2024/25. 

The impact of Brexit on the health workforce of the NHS is well beyond the remit of this presentation. As an EU lawyer, I shall confine my thoughts – in accordance with the role assigned to me by the organizers – to the EU perspective. In this sense, I would like, firstly, to rapidly set the scene and summarize the rules set out in Directive 2005/36 to facilitate free movement of health professionals and verify whether, and to what extent, they continue to apply to the UK. Secondly, I intend to briefly consider the main reasons that lead health professionals to move within the EU. Finally, looking at how the Commission has tried to advance the system via interpretative communications, I will try to point out how the flexibility showed during the pandemic can act as a base for future minimum coordination.

The system of automatic recognition of diplomas: the case of health professionals

Strategic workers in the fight against COVID19, such as doctors (with basic medical training and with specializations in respiratory medicine, immunology or communicable diseases) and general care nurses are subject to an automatic recognition procedure pursuant to Directive 2005/36/EC. The latter has set minimum requirements (training hours, competences, skills) for a number of professionals working in the field of healthcare. Besides doctors and nurses, Annex V of the directive covers midwives, pharmacists, dentists. Following the introduction of the European Professional Card in 2016, physiotherapists are also included among the professions subject to automatic recognition. 

To promote free movement whilst protecting health and safety, Member States are encouraged to map and review the list of regulated professions and specializations. In this respect, it should be stressed that at the EU level Annex V has been regularly amended via delegated acts. Most recently, the Commission has adopted delegated decision 2020/548 of 23 January 2020 on the evidence of formal qualifications and titles of training courses. The possession of one of the diplomas and any other relevant certificate (professional traineeships, state exam) listed in the mentioned Annex is enough to obtain access to the labor market of any other Member State. Still, the interested individual must submit his/her request to the competent authorities of the host Member State. 

The procedure can be burdensome and is not cost-free as Member States remain free to impose administrative fees. And this also applies when the individual applies for a European Professional Card. The competent authority of the Member State of destination must acknowledge the application within one month of receiving it and can ask for missing documents. The decision on the qualifications must in principle be adopted within three months and is challengeable before the pertinent national courts. In case of major differences between the qualifications, doctors and nurses may be asked to sit an aptitude test or, in the alternative, complete an adaptation period important for specializations.  

While problems related to compliance with the requirements of the Directive by professionals will be handled within the Internal Market Information System (IMI), which allows the competent national authorities to communicate through a dedicated online platform and prevent abuses, incompatible domestic measures can be contested via an infringement action or a preliminary ruling procedure, but also through the Solvit system, a network of national contact points charged with the task of clarifying the applicable legal framework and removing undue restrictions. 

Directive 2005/36 was amended Directive 2013/55, which tried to speed up recognition. Among the numerous amendments, it is worth mentioning – above and beyond the introduction of the mentioned European Professional Card, which is essentially an electronic certificate proving the needed competences – the mandatory use of the Internal Market Information IMI-system (e.g., alerts on professionals suspended or prohibited from practicing in their home country); the partial access to a profession and new simplified to rules on languages.

The added value of the directive(s) is undeniable, and the UK government decided it will continue to unilaterally apply for an additional period of two years after the end of the transition period. Hence, there is no reciprocity: the choice as to whether to recognize UK professionals in the EU is left to the single EEA States.

Reasons and magnitude of the phenomenon

In 2017, there were 9.5 million active movers in the EU, including employed and job-seekers. The main countries of destination were Germany and the UK, followed by Spain, Italy and France. The principal countries of origin were Romania, Poland, Italy, Portugal and Bulgaria. 

Health professionals, health associate professionals and personal care workers in the health sector represented around 7 % of all employed EU-28 movers. Again, the main countries of destination were Germany and the UK (for health professionals) and Italy (for personal care workers). The main countries of origin (in total numbers) were Romania, Poland and Italy.

European citizens tend to move to another EU Member State either for family reasons (to join a family member or relatives) or in search of better career opportunities (to find a job). The decision to move depends on many factors: personal, but also macroeconomic and political.

The existence today of notable salary differences between EU Member States plays an important role and it appears that nurses from Bulgaria are willing to accept a job below their skill level in Sweden, where the salary for a healthcare assistant can be five times higher than that offered in their home country.

Shortages of specific professional figures can also be an incentive to (try to) attract workforce from abroad. In Germany, for example, a transnational cooperation project for nursing vocational and educational training institutions between Poland and Germany was set up to address the need of care for the elderly. In the UK, pre-Brexit, the NHS Trusts have actively recruited nurses from Italy, Spain and Portugal. On the other hand, significant migration of health professionals towards other countries can lead to the adoption of measures to retain qualified workers. Italy, for example, has introduced specific skill-mix nursing education programmes to enhance the attractiveness of the profession. Of course, the economic crisis – and the consequent reductions in public spending – greatly contributed to mobility, most notably from Spain, Italy and Portugal to the UK. 

In general, for movers, geographical proximity and the same or similar language are paramount. In this regard, for health professionals there are already well-established links between neighboring countries (namely, Denmark and Sweden for doctors practicing in Norway, France for doctors practicing in Belgium).

User’s guide on how to interpret Directive 2005/36 during the sanitary crisis

During a pandemic swift recognition of Health Professional Qualifications is pivotal. In this respect, the Commission Guidelines on EU Emergency Assistance in Cross-Border Cooperation in Healthcare, of 3 April 20201, remind the Member States that Directive 2005/36 does not prevent them from being more flexible when it comes to accepting incoming health professionals: administrative formalities can be removed and application procedures can be accelerated (e.g., shorter deadlines, fewer supporting documents, more relaxed stance towards compensation measures). Moreover, Member States are encouraged to drop the requirement for a prior declaration and prior check for qualifications (required for services). 

Against all the accusations of immobilism, absence of strategy and compliance-driven approach, the Commission – but, to be honest, not only the Commission – took the much celebrated “all it takes approach” doing everything it was allowed to do under the Treaties – and as recognized by Ursula Von der Leyen recently, even more – in an attempt to ensure healthcare services during the sanitary crisis. Coupled with the recommendations contained in the communications on the handling of cross-border mobility of essential goods, workers and services, these adjustments have highly contributed to limit the negative consequences of the initial reaction by the single Member States. 

Final remarks

It remains to be seen to what extent the healthcare sector will be affected by Brexit now that the TCA is in force, but at least in relation to doctors and nurses, international recruitment will still be possible. Independently of any voluntary legislative convergence, the TCA does contemplate the possibility of developing new mechanisms for mutual recognition of professional qualifications. And although normative alignment is made dependent on a positive economic value of mutual recognition, the link should not be too hard to establish. This of course raises broader questions concerning the very nature of labor rights, as fundamental rights and economic freedoms.  

Meanwhile, it appears that professional regulatory bodies are currently working with the UK government on registration requirements after January 2023 for those who have obtained qualifications in EU/EEA countries, which leaves hope for the future.

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