The European Communities (Recognition of Professional Qualifications) (First General System) Regulations 2005

Citation and commencement

1.—(1) These Regulations may be cited as the European Communities (Recognition of Professional Qualifications) (First General System) Regulations 2005.

(2) These Regulations shall come into force on 9th February 2005.

Interpretation

2.—(1) In these Regulations the following words and phrases have the following meanings (and cognate expressions shall be construed accordingly)—

“adaptation period” means a period of practice of a regulated profession in the United Kingdom under the supervision of a qualified member of that profession, required by a designated authority pursuant to regulation 6(1)(b);

“another relevant State” means a relevant State other than the United Kingdom;

“appeal body” means, in respect of any regulated profession, the body, court or person specified in relation to that profession in Schedule 4;

“aptitude test” means a test required by a designated authority pursuant to regulation 6(1)(b);

“competent authority” means, in relation to any

(a)

document, certificate, diploma or qualification, or

(b)

period of professional experience,

referred to in these Regulations, the authority, body or person in a relevant State authorised under the laws, regulations or administrative provisions of that State, to issue, award or recognise such document, certificate, diploma or qualification, or to certify any such period;

“corresponding profession” means a profession, the pursuit of which in another relevant State includes a substantial number of the professional activities comprised in the pursuit of the profession in the United Kingdom which is the subject of the migrant’s application;

“designated authority” means a body or authority designated in relation to a regulated profession by regulation 4 and any qualifying body referred to in regulations 11(2) and 12(3);

“diploma” means any diploma, certificate or other evidence of formal qualifications awarded by a competent authority in a relevant State—

(a)

which shows that the holder:

(i)

has successfully completed a post-secondary course of at least three years' duration (or of an equivalent duration part-time) at a university or an establishment of higher education or an establishment of equivalent level;

(ii)

has successfully completed any additional professional training required; and

(iii)

has the qualifications required for the practice of a regulated profession in that State;

provided that either:

(A)

the education and training attested were received mainly within the relevant States; or

(B)

the holder has had at least three years' professional experience certified by a competent authority in that State (being a State which recognised a diploma, certificate or other evidence of formal qualifications obtained in a non relevant State); or

(b)

which was awarded on the successful completion of education and training received within the relevant States, and which—

(i)

has been recognised by a competent authority in that State as equivalent in level to a diploma to which sub-paragraph (a) applies; and

(ii)

confers the same rights in respect of the practice of a regulated profession in that State;

“the Directive” means Council Directive 89/48/EEC(1) on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration as amended by Directive 2001/19/EC(2);

“migrant” means a national of a relevant State applying under these Regulations to a designated authority for authorisation to practise;

“native applicant” means a national of a relevant State applying to a designated authority for authorisation to practise, the qualifications of whom were obtained wholly within the United Kingdom;

“practise” in relation to any regulated profession, includes—

(a)

the taking up or pursuit of the profession in a relevant State, whether in a self-employed capacity or as an employed person; and

(b)

the right to use, in the course of such pursuit, a professional title or designatory letters, or the enjoyment of any special status corresponding to a diploma, granted by a designated authority for that profession;

“professional association” means an association or organisation, recognised in special form by a relevant State, the purpose of which is, in particular, to promote and maintain a high standard in the professional field with which it is concerned and which, to that end—

(a)

prescribes and enforces respect within it membership for, rules of professional conduct; and awards a diploma to its members; and

(b)

confers on its members the right to use one or more professional titles or designatory letters or to benefit from a status corresponding to that diploma;

“professional experience” means the lawful pursuit in a relevant State of a profession corresponding to the regulated profession which is the subject of the migrant’s application;

“regulated education and training” means education or training which—

(a)

is directly geared to the practice of a defined profession in a relevant State and

(b)

comprises a post-secondary course of at least three years' duration, or an equivalent duration part-time, at a university or higher education establishment or in another establishment of equivalent level, and any additional professional training, professional traineeship or professional practice required, the structure and level of which is determined by the laws, regulations or administrative provisions of that relevant State or monitored or approved by the competent authority;

“regulated profession” means –

(a)

in the United Kingdom—

(i)

a profession in respect of which a designated authority is specified in Schedule 1 and the profession of company auditor as defined in section 24(2) of the Companies Act 1989 (3) and Article 27(2) of the Companies (Northern Ireland) Order 1990(4), or

(ii)

at any time when a designated authority is not specified, if and in so far as any professional activity or range of activities which constitutes the profession is a regulated professional activity;

(b)

in another relevant State if and in so far as any professional activity or range of such activities which constitutes the profession is regulated as a professional activity;

“regulated professional activity” means that a professional activity is regulated in a relevant State if and in so far as—

(a)

the practice, or any mode of practice, of that activity in that relevant State is subject, directly or indirectly, by virtue of laws, regulations or administrative provisions to the possession of a diploma; or

(b)

it is practiced under a professional title, or designatory letters the use of which is reserved to holders of a diploma governed by laws, regulations or administrative provisions; or

(c)

it relates to health and the remuneration or reimbursement received for the practice of the activity in the relevant state in question is, by virtue of national arrangements for the administration of social security, subject to the possession of a diploma; or

(d)

it is practiced by members of a professional association;

“relevant State” means a member State, Iceland, Norway, Liechtenstein or Switzerland.

(2) A reference in these Regulations to “the United Kingdom” shall, as the context requires, include a reference to any of the following: England and Wales, Scotland, and Northern Ireland.

(3) Any reference in these Regulations to a numbered regulation or Schedule is a reference to the regulation or Schedule so numbered in these Regulations.

Application

3.  These Regulations shall apply notwithstanding any enactment or rule of law, including any provision in any charter, bye-law or other rule (however described) governing any designated authority.

Designated authorities

4.—(1) The designated authority for a regulated profession in the United Kingdom, other than the profession of company auditor as defined in section 24(2) of the Companies Act 1989 and Article 27(2) of the Companies (Northern Ireland) Order 1990, is the body or authority specified in relation to that profession in Schedule 1, or at any time when a designated authority is not so specified is the competent authority for any regulated profession or regulated professional activity.

(2) Without prejudice to its other powers and functions, a designated authority shall have the function of considering applications and granting authorisations under these Regulations.

Right to practise in the United Kingdom

5.—(1) Subject to regulation 6, a designated authority for a regulated profession may not, on grounds of inadequate qualifications, refuse to authorise a migrant to practise the profession on the same conditions as apply to someone who holds the diploma required of native applicants, if—

(a) the migrant holds the diploma required in another relevant State for the practice of a corresponding profession regulated by that State, the diploma having been awarded in a relevant State; or

(b) the migrant produces evidence that he holds formal qualifications which satisfy the requirements of sub-paragraph (2) below and either—

(i) the qualifications were awarded on completion of regulated education and training; or

(ii) the migrant has within the ten years immediately prior to his application pursued a corresponding profession for at least two years full-time (or equivalent duration part-time) in a relevant State in which the profession is not regulated.

(2) Formal qualifications satisfy the requirements of this sub-paragraph if they are:

(a) formal qualifications awarded by a competent authority in a relevant State which—

(i) show that the migrant has successfully completed a post-secondary course of at least three years' duration (or equivalent duration part-time) at a university or an establishment of higher education or an establishment of equivalent level in a relevant State;

(ii) show the migrant has successfully completed any additional professional training required; and

(iii) prepared the migrant for the corresponding profession;

or

(b) formal qualifications awarded by a competent authority in a relevant State on the successful completion of education and training within the relevant State, and recognised by a competent authority in that State as equivalent to the qualifications specified in sub-paragraph (2)(a) of this regulation; provided that notification of such recognition has been duly given in accordance with Article 3(b) of the Directive.

Professional experience, adaptation periods and aptitude tests

6.—(1) A designated authority may, before authorising the migrant to practise the regulated profession, require him to satisfy one or other of the following conditions (but not both)—

(a) where the duration of the education and training received by the migrant, as appears from the matters established by him pursuant to regulation 5, is at least one year less than that required of native applicants, he may be required to provide evidence of a period of professional experience; and the provisions of Schedule 2 shall have effect with respect to the length of that period;

(b) in the circumstances specified in paragraph (3) of this regulation (but subject to paragraphs (2) and (3), the migrant may be required either—

(i) to complete an adaptation period not exceeding three years with a successful assessment; or

(ii) to pass an aptitude test.

(2) Where a requirement is imposed pursuant to sub-paragraph (1)(b) of this regulation, the choice between an adaptation period and an aptitude test shall be that of the migrant, except in the case of the regulated professions specified in Schedule 3 (where the provisions of that Schedule shall apply).

(3) If a designated authority intends to require the migrant to complete an adaptation period or take an aptitude test it must first examine whether the knowledge acquired by the migrant in the course of his professional experience is such that it fully or partly covers the substantial difference referred to in paragraph (4).

(4) The circumstances referred to in sub-paragraph (1)(b) of this regulation are where the matters covered by the education and training received by the migrant, as established by him pursuant to regulation 5, differ substantially from those covered by the diploma required of native applicants.

Requirements in relation to aptitude tests

7.—(1) An aptitude test shall be limited to the professional knowledge of the migrant and shall have the aim of assessing his ability to pursue the relevant regulated profession in the United Kingdom. The test shall take into account that he is a qualified professional in another relevant State.

(2) The designated authority shall determine the matters to be covered by the aptitude test as follows:

(a) the designated authority shall establish which subjects covered by the diploma required of native applicants are not already covered by the migrant’s diploma or other evidence of formal qualifications;

(b) the test shall cover subjects selected from those so established, the knowledge of which is essential for the pursuit of the regulated profession in the United Kingdom;

(c) the test may include knowledge of the relevant rules of professional conduct.

(3) The professional status of a migrant preparing for the aptitude test shall be a matter for the designated authority.

Requirements in relation to adaptation periods

8.—(1) The designated authority shall determine the detailed requirements of the adaptation period, having regard to the circumstances of each individual migrant and, in particular, to the fact that he is a qualified professional in another relevant State.

(2) The migrant may be required to undergo further training during the adaptation period.

(3) The migrant’s performance during the adaptation period shall be assessed by the designated authority.

(4) The professional status of a migrant during the adaptation period shall be a matter for the designated authority.

Evidence from competent authorities

9.—(1) A designated authority shall, in connection with any matter requiring to be established pursuant to regulation 5 or 6, accept as sufficient evidence thereof the certificates or other documents duly issued by a competent authority of the relevant State for the purpose of attesting such matters.

(2) A designated authority which—

(a) requires of a migrant for authorisation to practice proof that he is of good character or repute, or that he has not been declared or adjudged bankrupt, or had a bankruptcy or similar order made against him or in relation to his estate; or

(b) suspends or prohibits practise in the event of serious professional misconduct or the commission of a criminal offence;

shall accept as sufficient evidence in relation to the foregoing:

(i) the documents showing the relevant conditions are met, duly issued by the competent authorities of the relevant State of origin of the migrant, the relevant State from which the migrant comes or the relevant State in which the migrant formerly qualified or practised; or

(ii) where those authorities do not issue such documents, a declaration on oath or solemn declaration to the required effect, made by the migrant before a competent judicial or administrative authority or (where appropriate) a notary or duly qualified professional body of the relevant State; provided that in each case such declaration is authenticated by a certificate issued by the authority, notary or body.

(3) A designated authority which requires of persons wishing to practise a certificate of physical or mental health, shall accept as sufficient evidence thereof the documents required for such a purpose in the relevant State of origin of the migrant, the relevant State from which the migrant comes or the relevant State in which the migrant formerly qualified or practised, or (where none are required in those States) a certificate issued by a competent authority there which corresponds to the certificate issued for that purpose in the United Kingdom.

(4) A designated authority may require any document or certificate referred to in paragraph (2) or (3) of this regulation to be presented no more than three months after the date of its issue.

(5) Where a designated authority requires migrants to take an oath or make a solemn declaration, the form of which is such that it cannot be taken or made by nationals of another relevant State, it shall ensure that an appropriate equivalent form of oath or declaration is available for those nationals.

(6) A designated authority which requires proof of financial standing in respect of a migrant for authorisation to practise shall, in respect of a migrant, regard certificates issued by banks in the relevant State of origin of the migrant, the relevant State from which the migrant comes or the relevant State in which the migrant formerly qualified or practised as equivalent to those issued by banks in the United Kingdom.

(7) Subject to paragraph (8) a designated authority which requires proof that a migrant for authorisation to practise is insured against the financial risks arising from the migrant’s professional liability shall in respect of a migrant accept certificates issued by insurance undertakings of other relevant States as equivalent to those issued by insurance undertakings in the United Kingdom.

(8) Any certificate referred to in paragraph (7) shall state that the insurer has complied with the laws and regulations in force in the United Kingdom regarding the terms and extent of cover and shall be presented no more than three months after the date of issue.

Use of professional title

10.—(1) A migrant who has been granted authorisation to practise a regulated profession pursuant to these Regulations shall have the right to use—

(a) the professional title and designatory letters applicable to that profession in the United Kingdom; and

(b) the lawful academic title (and where appropriate the abbreviation thereof) acquired by him in the relevant State in which he formerly qualified and in the language of that State.

(2) Where the migrant makes use of the possibility provided for in sub-paragraph (1)(b) of this regulation, the designated authority may require that the title shall be followed by the name and location of the establishment or examining board which awarded it.

(3) Where the migrant makes use of the possibility provided for in sub-paragraph (1)(a) of this regulation, and the profession is one of those specified in Part 2 of Schedule 1 (Professions regulated by professional bodies incorporated by Royal Charter), he shall only be entitled to use the professional title or designatory letters on proof of membership of the relevant body.

(4) Where membership of a professional body is subject to any qualification requirements, such requirements may be applied to a migrant who satisfies condition (a) or (b) of regulation 5(1) only so far as they are consistent with the provisions of these Regulations.

Special provisions for company auditors

11.—(1) In this regulation—

(a) “the Act” means the Companies Act 1989;

(b) “company auditor” has the meaning given in section 24(2) of the Act;

(c) “qualifying body” means a body offering a qualification in respect of which there is for the time being in force an order made by the Secretary of State pursuant to paragraph 2 of Schedule 12 to the Act; and

(d) “supervisory body” means a body in respect of which there is for the time being in force an order made by the Secretary of State pursuant to paragraph 2 of Schedule 11 to the Act.

(2) Any qualifying body is a designated authority for the regulated profession of company auditor and may accordingly authorise a migrant as qualified to practise that profession.

(3) A migrant so authorised shall be eligible for appointment as a company auditor only if he satisfies the conditions for eligibility laid down in Part II of the Act.

(4) Notwithstanding anything in Part II of Schedule 11 to the Act, in the case of a migrant who has been granted authorisation to practise by a qualifying body pursuant to these Regulations and who has satisfied any requirements imposed by that body under regulation 6, a supervisory body may not exclude the migrant from membership, or otherwise limit his eligibility for appointment, on any ground related to his previous education and training or to the length of his previous professional experience or practice.

(5) Regulation 9 shall apply to supervisory bodies as it applies to designated authorities.

(6) References, in Part II of the Act, to individuals holding an appropriate qualification are to be construed as including individuals who have been authorised to practise by a qualifying body pursuant to these Regulations and who have fulfilled any requirements imposed pursuant to regulation 6.

Special provisions for company auditors in Northern Ireland

12.—(1) This regulation applies to Northern Ireland only.

(2) In this regulation—

(a) “the Order” means the Companies (Northern Ireland) Order 1990;

(b) “company auditor” has the meaning given in Article 27(2) of the Order;

(c) “qualifying body” means a body offering a qualification in respect of which there is for the time being in force an order made by the Department of Enterprise, Trade and Investment pursuant to paragraph 2 of Schedule 12 to the Order;

(d) “supervisory body” means a body in respect of which there is for the time being in force an order made by the Department of Enterprise, Trade and Investment pursuant to paragraph 2 of Schedule 11 to the Order.

(3) Any qualifying body in Northern Ireland is a designated authority for the regulated profession of company auditor and may accordingly authorise a migrant as qualified to practise that profession.

(4) A migrant so authorised shall be eligible for appointment as a company auditor only if he satisfies the conditions for eligibility laid down in Part III of the Order.

(5) Notwithstanding anything in Part II of Schedule 11 to the Order, in the case of a migrant who has been granted authorisation to practise by a qualifying body pursuant to these Regulations and who has satisfied any requirements imposed by that body under regulation 6, a supervisory body may not exclude the migrant from membership, or otherwise limit his eligibility for appointment, on any ground related to his previous education and training or to the length of his previous professional experience or practice.

(6) Regulation 9 shall apply to supervisory bodies in Northern Ireland as it applies to designated authorities.

(7) References, in Part III of the Order, to individuals holding an appropriate qualification are to be construed as including individuals who have been authorised to practise by a qualifying body pursuant to these Regulations and who have fulfilled any requirements imposed pursuant to regulation 6.

Decisions of designated authorities and appeals

13.—(1) A designated authority for a regulated profession shall consider the migrant’s application as soon as is reasonably practicable, and shall notify him of its decision together with the reasons upon which it is based within four months of receipt of all the relevant documents.

(2) Where a designated authority imposes a requirement pursuant to paragraph (1) of regulation 6, the decision referred to above shall include—

(a) in the case of a period of professional experience, a determination of the length of that period;

(b) in the case of an adaptation period, a determination of the length of the period and the training, if any, required;

(c) in the case of an aptitude test, a determination of the matters to be covered by the test.

(3) For the purposes of this regulation, if a designated authority fails to take a decision and notify it to the migrant within the period mentioned in paragraph (1) of this regulation, it shall be deemed to have taken a decision to reject his application and to have notified it to him on the last day of that period.

(4) Within three months of the notification to him of the designated authority’s decision, or thereafter with leave of the appeal body, the migrant may appeal against the decision to the appeal body specified in Schedule 4.

(5) An appeal body for a regulated profession may, for the purpose of determining any appeal under these Regulations against the decision of a designated authority—

(a) give any authorisation to practise and impose any condition which the designated authority could give or impose in relation to that profession; or

(b) remit the matter to the designated authority with such directions as the appeal body sees fit.

(6) Without prejudice to any powers of the Court of Session in Scotland to regulate the proceedings of itself and those of the sheriff courts, an appeal body listed in paragraph 1 of Schedule 4 in England and Wales or Northern Ireland may make rules of procedure governing the hearing and determination of any appeal under these Regulations against the decision of a designated authority. Such rules may make different provision for different cases.

Information from designated authorities

14.  Designated authorities shall provide the Secretary of State with such information (including statistical information) as he may require concerning applications made and decisions taken under these Regulations.

Revocation

15.  The following Regulations are hereby revoked—

(a) The European Communities (Recognition of Professional Qualifications) Regulations 1991 (5)

(b) The European Communities (Recognition of Professional Qualifications) (Amendment) Regulations 2000 (6)

(c) The European Communities (Recognition of Professional Qualifications) (Amendment) Regulations 2002 (7)

Kim Howells

Minister of State

Department for Education and Skills

10th January 2005