The New Compulsory Iom Medical At British Embassy : Is It Legal ?

[topfield]

The British Embassy are now refusing all EEA Family Permit applications unless accompanied by an IOM medical test certificate. Yet their website does not list family permits in the category list of those requiring IOM certificates .

Since the principle of free movement in EU countries is sacrosanct surely the Embassy are acting illegally in refusing applications by the spouse of EEA nationals ? In doing this they are erecting a barrier to free movement and thus preventing that spouse and others from entering the UK .

As the rule has always been that the spouse of the EEA national should enjoy the same rights as the EEA national him/herself and be subject to the same obligations , then unless the national him/her self needs the certificate to enter the UK, then surely the spouse does not ?

Please note this posting concerns only the blanket requirement for these certificates as of course they can be required under public policy where it is known that a specific person is ill and needs to be examined.

Yes this important EU matter has been raised with the Entry Clearance Manager but so far he has failed to reply or state his authority to do this , nor has he yet provided chapter and verse ...if indeed any such authority exists.

Can anyone shed any light on this matter ?

[GU22]

From REQUIREMENT FOR TUBERCULOSIS TESTING FOR APPLICANTS VISITING THE UK FOR LONGER THAN 6 MONTHS

From Thursday 1 December 2005, all applicants submitted in Thailand wishing to come to the United Kingdom for a period longer than six months will need to obtain a certificate confirming that they are free from infectious tuberculosis (TB) before submitting their visa application. The categories of applicant that will be affected by this new requirement include long-term students, work permit holders, other employment and domestic workers, volunteer workers (plus all dependants of the aforementioned), and all settlement and marriage cases. Please note that those failing to submit a certificate at the time of application will be refused and the visa fee not refunded.

The following will be exempt from the TB testing requirement:

All diplomatic passport holders;

All children aged under 11 years. (my emphasis)

Obviously, EEA family permit applications come under the blanket "all settlement and marriage cases".

From Immigration Rules, Part 1: General provisions regarding leave to enter or remain in the United Kingdom

Para 39

The Entry Clearance Officer has the same discretion as an Immigration Officer to refer applicants for entry clearance for medical examination and the same principles will apply to the decision whether or not to issue an entry clearance.

Please note that applying this rule is not some arbitrary spiteful decision by any or all the ECOs at the Bangkok embassy; it is a direct instruction from the British government. Edited May 6, 2006 by GU22

[the scouser]

all applicants .... will need to obtain a certificate confirming that they are free from infectious tuberculosis (TB) before submitting their visa application.

A family permit is not a visa, so the more disingenuous could argue that such applicants don't need to undergo the TB test.

However, public health is still a matter for the individual EU state and, as GU22 posted, the immigration rules provide the wherewithal for ECOs/IOs to require an individual to undergo a medical test. There is additionally a section of the Immigration Act 1971 (sorry, can't remember the section number) which confers a similar power and allows for, upon conviction, a prison sentence of up to 6 months for a refusal to comply with such a request.

If you were looking for a loophole, there's not one there.

Scouse.

[topfield]

Thank you for all the interesting replies.

I feel however that the point has been missed !

The rules and laws restricting the freedom of movement under EU law must come from/originate from Brussels not London.

We all know that the EEA FAMILY PERMIT rules are quite separate from the domestic UK immigration rules.

No particular Embassy has the power to unilaterally and arbitrarily restrict freedom of movement on EEA nationals and their family.

Yes , public policy is a reason but then there must be a strong case to show that Thailand is a country where TB is endemic and represents a threat to health.

I am pretty sure this is not the case and that the W.H.O has not made such a judgement.

The rules applying previously allowed each posting to decide whether a medical was to be compulsory before a visa ( not Family Permit..a separate issue) was issued and Thailand was not on the list...India I believe was. The state of health care in the country concerned, was the deciding factor.

This therefore raises an important issue . Has Thailand been downgraded and no longer considered a country with high standards of health care ?

Again, away from the European point is the whole question of the IOM and the rules applying.

Could there be a smell of corruption here one wonders ?

Before the current rules were introduced wives would obtain their TB medicals at large government teaching hospitals such as Chulalongkorn. The fee was always around Bt 500.

Private hospitals such as Bamrungrad charged Bt 1000.

Now with the IOM, the applicant is charged four times or twice the price for THE SAME HOSPITAL !

The IOM is raking in the money with a monopoly status as certicates from these hospitals are no longer accepted by the Embassy unless the IOM has had its cut. OUTRAGEOUS !

Next the Embassy will be insisting that all translations be done by a certain office to which they are affiliated with fees ten times higher !

A final point : this requirement by Bangkok is NOT the norm. Several embassies I emailed stated there was no medical requirement at their posting for Thais who wished to settle in the UK.

More and more one cannot help feeling there is more to the new IOM requirement than purely medical ($$$$$$$$$$$) ?

WHO IS PROFITING AND GATHERING IN HUGE SUMS OF MONEY FROM THIS ? WHO IS THE IOM ? THREE HUNDRED PERCENT PROFIT IS NOT BAD FOR JUST STAMPING A FORM IS IT ?

ps The Bangkok Embassy info above is NOT the norm either. Please look up the Phnom Phen Embassy and it not only does NOT say ALL APPLICANTS as Bangkok does, but lists the categories and also exceptions ( which Bangkok does not do).

The moral : GET THE FACTS FROM LONDON & BRUSSELS . THE BANGKOK EMBASSY EVEN THOUGH LARGE DOES NOT HAVE A SINGLE SOLICITOR OR LAWYER IN THEIR STAFF. Astonishing !

[the scouser]

The countries included in the pilot scheme (Bangladesh, Thailand, and Tanzania - if memory serves me rightly) all have what is recognized to be a high incidence of TB. This is internationally set at 40 cases or above per 100,000 population. An IO/ECO would be as equally entitled to require an EU national to submit to a medical examination under para 39 but doesn't because none of the EU countries has a high incidence of TB.

The legislation to which you refer governs solely the entry of EU nationals and their dependants to the UK and is unconcerned with any medical requirements which the UK government may impose.

Scouse.

[GU22]

Before the current rules were introduced wives would obtain their TB medicals at large government teaching hospitals such as Chulalongkorn. The fee was always around Bt 500.

Private hospitals such as Bamrungrad charged Bt 1000.

Try and get your facts right. Before the current rules there was no requirement for any applicant for a visa or family permit of any type to the British embassy in Bangkok to have a medical beforehand. Had an applicant chosen to do so and submitted a medical certificate with their application then such a certificate would have been ignored by the ECO as superfluous.

However, there did, and still does, exist a requirement that all people entering the UK for a period of more than 6 months may be subject to a medical examination at the port of entry, even if they have a medical certificate with them. There is nothing in this rule to exempt EU or EEA nationals.

See Immigration Rules, Part 1: General provisions regarding leave to enter or remain in the United Kingdom Paras 36 to 39 inclusive.

As Scouse said

public health is still a matter for the individual EU state

So this is one of the few areas where the UK does not have to bend the knee to Brussels (yet).

Topfield also said

A final point : this requirement by Bangkok is NOT the norm. Several embassies I emailed stated there was no medical requirement at their posting for Thais who wished to settle in the UK.........

The Bangkok Embassy info above is NOT the norm either. Please look up the Phnom Phen Embassy and it not only does NOT say ALL APPLICANTS as Bangkok does, but lists the categories and also exceptions ( which Bangkok does not do).......

Thailand, as Scouse says, is part of the trial. All applicants in Bangkok, regardless of their actual nationality, are included. Thai nationals applying outside Thailand are not included, unless that country where they are resident is one of those included in the trial. Cambodia is not one of those countries, so of course the Phenom Phen embassy information will be different.

No particular Embassy has the power to unilaterally and arbitrarily restrict freedom of movement on EEA nationals and their family.

No, but they do have to follow the DPS and other guidelines issued to them by the Home Office. If these say that applicants have to have a TB certificate then that is what the embassy will do.

WHO IS THE IOM ?

International Organisation for Migration

Established in 1951 as an intergovernmental organization to resettle European displaced persons, refugees and migrants, IOM has now grown to encompass a variety of migration management activities throughout the world.........

While not part of the United Nations system, IOM maintains close working relations with UN bodies and operational agencies. IOM has as partners a wide range of international and non-governmental organizations.

You are trying to come across as some sort of expert with your sweeping statements and wild accusations. Unfortunately for you, your complete ignorance of the subject is plain to see.

Edited May 6, 2006 by GU22

[GU22]

I knew I should have checked, so hands up, I made a mistake.

Visa applicants in Cambodia do require a TB certificate. See British embassy, Phnom Phen.

From Wednesday 01 February, all applicants in Cambodia wishing to come to the United Kingdom for a period longer than six months will need to obtain a certificate confirming that they are free from infectious tuberculosis (TB) before submitting their visa application.......

Can't see that this information is any different to that given on the Bangkok site (except for the obvious, such as address of the IOM clinic).

BTW,

The British Embassy in Phnom Phen does not issue visas. All applications are processed at the British Embassy in Bangkok. However, applications can be lodged in Phnom Phen, which will then be sent to Thailand by courier.

(Source)

[the scouser]

I knew I should have checked, so hands up, I made a mistake.

Well, you've provided your own response.........

Unfortunately for you, your complete ignorance of the subject is plain to see.

Scouse.

[GU22]

Well......

A little knowledge is a dangerous thing!

[sua yai]

My question, although of a medical nature, is at a bit of a tangent to this thread. Hope you don't mind me tacking it on here. I was going to start a new one.

My Thai wife will be applying for VV to the UK shortly. We're in the process of getting all our documentation in order. She's been talking to her Thai friends who've told her that she'll need a medical certificate. I think that's complete rubbish and have never heard of the like before - for the VV.

Can someone put our minds at rest. Wouldn't want to go to the trouble of submitting everything, only to have it all rejected because there was no medical cert.

Thanks.

[vinny]

The Tuberculosis testing requirement is generally for those people, aged 11 or over, entring the UK for longer than six months. Visitors are normally excluded from this requirement because they will be entering for six months or less.

[Dragonman]

If London were taken in isolation the TB rate would be higher than Thailand!

So in fact if you visit London you have a better chance of bringing it back, than taking it.

I also wonder why India, Pakistan, China and Russia were left off the list? All with higher incidence than Thailand. Not political of course.

[GU22]

I also wonder why India, Pakistan, China and Russia were left off the list? All with higher incidence than Thailand. Not political of course.

Health screening: general Q&A

We began an initial phase of overseas screening in four overseas countries, to test the system. These all have high rates of TB, and include those where the medical infrastructure allows the testing phase to be set up quickly. Once we are satisfied that our procedures are workable and robust, we will begin to roll out to other countries during 2006.........

How have you chosen the countries in the Initial Phase?

They all have high rates of TB; they have a medical infrastructure which allows the testing phase to be set up quickly; and they represent the various kinds of entry clearance operation the UK runs, allowing us to test effectively our procedures before rolling out to other countries.

Which countries will be next?

No final decision has been taken on which countries will be included in the main phase. But a full evaluation will be made which will inform any decision to introduce TB testing more widely.

What evidence is there that these countries have high rates of TB?

We have been using the figures produced by the World Health Organisation.

Will you expect every country on the WHO list as having high incidence of TB to undertake pre-entry checks?

No final decisions have been taken yet as which countries the scheme will be rolled out to. But a full evaluation will be made which will inform any decision to introduce TB testing more widely.

It is worth remembering that those arriving from countries not currently included in the trials will still be liable to be sent to see the medical inspector at their port of arrival for a chest X-ray and other screening upon their arrival.

[GU22]

If London were taken in isolation the TB rate would be higher than Thailand!

TB rises by 80% in London

The Tuberculosis rate has risen by 80% in London over 10 years, to reach 40 cases per 100,000. In 2001 were 7,300 cases in the whole of the UK, of which more than 3,000 were in London.Around 60% of the UK's TB cases are people who were born abroad, and were infected it before they arrived.

(my emphasis)

Tuberculosis in Thailand.

The annual risk of infection in 1997 was estimated at 1.4%, with approximately 100 000 new TB cases developing each year.

Don't know about you, but when I went to school 100,000 was a lot more than 7,300, let alone 3,000!

Of course, the above figures are a few years of date, so I welcome a link to more recent figures, if you have one.

[topfield]

Dear GU22

Your wisdom and interest is much appreciated.

Unfortunately you have missed the point ! My posting, if you read its content, concerns family permits not visas !!.

The law governing these types of entry clearance is completely and totally dfferent .

With the former the Immigration Acts apply, with the latter it is the regulations and directives from Brussels agreed and accepted as having precedence over UK domestic law that applies.

Now to the point : NOWHERE on the Embasy website does it say that EU citizens and their family must undergo a medical for a EEA Family Permit to enter the UK for over 6 months.

The website covers VISA applications. A Family Permit is NOT a visa. The Family Permit rules confer definite rights to enter and live in other EU countries.... under domestic law no rights, only privileges are granted.

So please get your facts right, dear friend.

What would be interesting would be to find out if, say, the Embassies of France , Germany and The Netherlands are demanding medicals for their EEA Family Permits applicants . Presumably the rules should be the same as they are governed by the same EU rules.

NOTE : After a short study of TB websites on the internet it is clear that the possible true purpose of these medicals is to discover HIV associated TB as HIV seems to be the main problem in the incidence of TB in Thailand.

So now we know......its Aids in Thailand and the danger it will be brought to England by the Thai bargirls that is behind the new visa rules. tut tut tut

[GU22]

With the former the Immigration Acts apply, with the latter it is the regulations and directives from Brussels agreed and accepted as having precedence over UK domestic law that applies.

I refer you to the reply I gave earlier

As Scouse said

public health is still a matter for the individual EU state

So this is one of the few areas where the UK does not have to bend the knee to Brussels (yet).

Posted by topfield:

Now to the point : NOWHERE on the Embasy website does it say that EU citizens and their family must undergo a medical for a EEA Family Permit to enter the UK for over 6 months.

Correct, the embassy website refers to visa applicants, as Scouse has already pointed out this is poor wording on their part. However, if you look at thedocument check list for dependants of EEA nationals you will see that item 10 on the list is a TB certificate.

Also, the immigration rules on this matter do not refer to 'visas' they refer to 'entry clearance.' Whilst an EEA family permit is not a visa, it is a form of entry clearance.

So please get your facts right, dear friend.

I have, and with a little bit of research you would be able to do so too.

What would be interesting would be to find out if, say, the Embassies of France , Germany and The Netherlands are demanding medicals for their EEA Family Permits applicants . Presumably the rules should be the same as they are governed by the same EU rules.

Why not do some research and find out? However, as said before, public health is still a matter for the individual EU state.

After a short study of TB websites on the internet it is clear that the possible true purpose of these medicals is to discover HIV associated TB as HIV seems to be the main problem in the incidence of TB in Thailand.

It is true that the increase in HIV/AIDS is partly responsible for the increase in TB. However, if the government were concerned about foreign nationals bringing AIDS into the UK (and maybe they should be, although the biggest risk here is from Sub-Saharan Africa, not S.E. Asia) then applicants would have to have an AIDS test, not a TB one! It is also not just applicants in Thailand who are required to have a TB certificate, it's other countries as well (see Q&A link posted previously).

So now we know......its Aids in Thailand and the danger it will be brought to England by the Thai bargirls that is behind the new visa rules. tut tut tut

I'll assume this is an attempt at humour; or have you totally lost the plot?

[vinny]

topfield may have a valid point. Free movement rights can be excluded on grounds of 'public policy', meaning public policy, public security and public health. The Embassy may be invoking Council Directive 2004.38/EC.

Article 29

Public health

1. The only diseases justifying measures restricting freedom of movement shall be the diseases

with epidemic potential as defined by the relevant instruments of the World Health Organisation

and other infectious diseases or contagious parasitic diseases if they are the subject of protection

provisions applying to nationals of the host Member State.

2. Diseases occurring after a three-month period from the date of arrival shall not constitute

grounds for expulsion from the territory.

3. Where there are serious indications that it is necessary, Member States may, within three

months of the date of arrival, require persons entitled to the right of residence to undergo, free of

charge, a medical examination to certify that they are not suffering from any of the conditions

referred to in paragraph 1. Such medical examinations may not be required as a matter of routine.

However, nothing above applies specifically to the prerequisite requirements for the issue of family permits. Also of concern: "... free of charge ..." and "Such medical examinations may not be required as a matter of routine"!

Moreover, as family permits are not valid for more than six months, should they not fall outside of the Tuberculosis testing requirement?

[GU22]

topfield may have a valid point.

Sorry, I disagree with the above. With respect, Vinny, you seem to do so too

Free movement rights can be excluded on grounds of 'public policy', meaning public policy, public security and public health

The Embassy may be invoking Council Directive 2004.38/EC.

The embassy are not invoking anything; they are following instructions given to them by the government.

Para 1 of the directive clearly states that member states may restrict freedom of movement for health reasons

1. The only diseases justifying measures restricting freedom of movement shall be the diseases

with epidemic potential as defined by the relevant instruments of the World Health Organisation

TB is in this category, is it not? Para 3 says

3. Where there are serious indications that it is necessary, Member States may, within three

months of the date of arrival, require persons entitled to the right of residence to undergo, free of charge, a medical examination to certify that they are not suffering from any of the conditions

referred to in paragraph 1. Such medical examinations may not be required as a matter of routine.

(My emphasis)

but it is about after arrival in the member state.

See also Statutory Instrument 2000 No. 2326; The Immigration (European Economic Area) Regulations 2000, Refusal to issue or renew residence permit or residence document, and revocation of residence permit, residence document or EEA family permit

I have, after extensive research, been unable to find any directive or regulation which says that a member state may not require a medical certificate to be presented with the application, nor have I found anything to say that this certificate must be free, nor have I found anything to say that a family permit may not be refused on medical grounds.

Moreover, as family permits are not valid for more than six months, should they not fall outside of the Tuberculosis testing requirement?

You could say the same thing about fiance and civil partner visas. However, as the intention in all three situations is to settle in the UK then all three are obviously included in the requirement.

Remember, the guidance notes on the various embassy websites are just that, guidance. They do not give complete details of every rule. See the main Visa page

DISCLAIMER

THE INFORMATION CONTAINED ON THIS WEBSITE IS INTENDED ONLY AS A GENERAL GUIDANCE AND IS CORRECT AT THE LAST UPDATE HOWEVER, CHANGES IN LEGISLATION MAY HAVE OCCURRED AND YOU SHOULD ALWAYS CLARIFY YOUR POSITION WITH A BRITISH DIPLOMATIC MISSION BEFORE TRAVELLING TO THE UK. HER MAJESTY'S GOVERNMENT CANNOT ACCEPT LIABILITY FOR ANY LOSS OR DAMAGE ARISING IN RESPECT OF ANY STATEMENT CONTAINED IN THIS WEBSITE.

Edited May 8, 2006 by GU22

[vinny]

Thanks, GU22. The Immigration (European Economic Area) Regulations 2000 implements Council Directive 64/221/EEC, on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health. However, Council Directive 64/221/EEC has been repealed by Council Directive 2004/38/EC.

Council Directive 2004/38/EC entered into force on 30 April 2004 and is implemented in the Immigration (European Economic Area) Regulations 2006.

This was what I meant by saying that the Embassy may be invoking Council Directive 2004/38/EC. Indeed, they would be following the instructions given by the UK Government. I didn't mean to imply that they were not. I was just trying to trace the basis for the instructions.

As an aside, with the Council Directive 2004/38/EC coming into force, I wonder if spouses of UK citizens with ILR will still need to apply for Schengen visas?

Edited May 8, 2006 by vinny

[GU22]

I must admit, when I saw the age of S.I. 2000/2326 I did wonder if it had been superseded.

Regulations 12(5) and 21(7) being the relevant parts of the new regulations for the purposes of this thread.

Thanks, Vinny, for the update.