On 16 November 2020, the House of Lords is due to debate the European Qualifications (Health and Social Care Professions) (EFTA States) (Amendment etc.) (EU Exit) Regulations 2020 (‘the regulations’). These regulations would implement aspects of agreements with Switzerland and the European Free Trade Area (EFTA) states (Norway, Liechtenstein, and Iceland) concerning the recognition of health and social care qualifications.

The regulations concern healthcare professions in the UK and social work professions in England only.

The instrument was laid under the draft affirmative procedure. This means it must be approved by both Houses before it can be brought into force.

What is the current status of the law?

There is currently a system for mutual recognition of professional qualifications within and between European Economic Area (EEA) states (those in the EU and those in EFTA) and Switzerland. Under this system, certain professional qualifications of EEA and Swiss nationals are recognised in Switzerland and EEA states other than the state in which the qualification was obtained. These nationals can also rely on these qualifications to undertake temporary or occasional work in other states with minimal barriers.

The mutual recognition system was implemented in domestic law in the UK. In 2019, the Government introduced regulations to change this legislation in light of the UK’s exit from the EU. This was because the domestic legislation would be “inoperable” after the end of the transition period as the UK would no longer be a signatory to the relevant EU Directive. In addition, because the legislation was in part based on mutual recognition with EU states which is not guaranteed to continue after the end of the transition period, the Government said it would be “inappropriate” to retain it.

The European Qualifications (Health and Social Care Professions) (Amendment etc.) (EU Exit) Regulations 2019 and the European Qualifications (Pharmacists) (Amendment etc.) (EU Exit) Regulations (Northern Ireland) 2019 (‘the 2019 regulations’) establish the system of recognition of professional qualifications for EEA and Swiss qualifications after the end of the transition period. For health and social care, this legislation maintains automatic recognition of EEA and Swiss qualifications. This applies to people already in the UK and those entering after the end of the transition period. This will be reviewed after two years.

The 2019 regulations revoked the provisions for temporary or occasional work in other states. The Government stated that this was because these provisions “rely on reciprocal arrangements with the EEA designed to facilitate free movement of persons and services which will no longer be appropriate once the UK leaves the EU”.

What would the regulations do?

There are a number of areas where the UK’s commitments in the Swiss Citizens’ Rights Agreement and European Economic Area (EEA) EFTA Separation Agreement go further than those provided for by the 2019 regulations. The instrument would implement those commitments by making changes to the 2019 regulations.

The regulations would allow a four-year period, as opposed to the two-year period provided for in the 2019 regulations, for Swiss nationals who have a professional qualification or are in the process of obtaining a qualification before the end of the transition period to apply for recognition under pre-exit rules. This would include people with qualifications from outside the EEA and Switzerland which have been recognised, or are in the process of being recognised, in Switzerland at the end of the transition period.

The regulations would also continue to apply the pre-exit rules for temporary and occasional service providers for up to five years for certain Swiss service providers who have a contract and who have started providing the contractual service before the end of the transition period.

In addition, the regulations would ensure that UK regulators cooperate with their EFTA counterparts to process applications for recognition that are ongoing at the end of the transition period. They would also provide that Swiss and EFTA nationals whose professional qualifications are recognised are treated on the same basis as UK nationals.

What parliamentary scrutiny has there been?

The regulations have been considered by the House of Lords Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments, with neither raising any concerns.

The House of Commons Delegated Legislation Committee considered the regulations on 7 October 2020. Minister for Health and Social Care Edward Argar summarised the purpose of the regulations:

The regulations are a small but necessary step forward to implement the Swiss citizens’ rights agreement and the EEA EFTA separation agreement, in respect of the recognition of professional qualifications. Those agreements were signed after the making of the previous EU exit legislation on this matter, hence this statutory instrument. The regulations enable health and social care professionals and businesses to better prepare for the end of the transition period, and represent a further degree of continuity and co-operation.

He emphasised that the arrangements being proposed would be reciprocated by the EFTA states and Switzerland respectively.

Shadow Minister for Health and Social Care Justin Madders said the Opposition would support the regulations. However, he argued that it was unclear who would qualify for the four-year period to apply for recognition in the UK under pre-exit rules. The Minister responded that those provisions would apply “to both Swiss nationals with qualifying professional qualifications and to a national of a third [non-EU] country who has an enforceable EU right through their relationship with a Swiss national”.

Mr Madders also asked the Minister what the Government’s plans are for recognising these professional qualifications beyond the two- and four-year periods provided for in the two sets of regulations, and the position of UK nationals wishing to practice healthcare in the EU after the end of the transition period. The Minister responded that these are “matters for the ongoing negotiations with the EU that we are engaging in continuously and constructively”.