Here we explore the issue of comprehensive sickness insurance and EU permanent residence applications. This relates to applications filed under current EU Free Movement rules whilst the UK is a member of the EU. It does not apply to applications made under the EU Settlement Scheme. Our up to date Brexit immigration analysis can be found here.
If you would like to discuss your situation with one of our specialists on a no obligation basis, you are very welcome to contact us.
Since the referendum in June 2016, we have received an increasing number of enquiries from concerned EU and EEA nationals (who we will refer to as EEA nationals) asking if they need comprehensive sickness insurance to support permanent residence applications.
We’ve therefore set out the answers to some of the main concerns and questions people may have.
Is comprehensive sickness insurance relevant to all EU and EEA nationals?
No is the simple answer.
Under EU law, namely Directive 2004/38/EC (commonly referred to as the ‘Citizens’ Directive’ or ‘Free Movement Directive’), EEA nationals (and their qualifying family members) are lawfully entitled to live in an EU member state for more than three months providing the EEA national is exercising Treaty rights. In brief, it means that they must be:
- Working
- Self-employed
- Self-sufficient and possessing comprehensive sickness insurance
- Studying and possessing comprehensive sickness insurance
As can be seen, those who are working and the self-employed do not need to possess comprehensive sickness insurance to be regarded as lawfully exercising their Treaty rights under EU law. Those who are studying or are self-sufficient do.
In reality, whether or not a self-sufficient person or a student has comprehensive sickness insurance is not generally something the UK Government will consider, unless the individual or a family member applies for a residence or permanent residence document.
EEA nationals and their direct family members who are exercising Treaty rights automatically acquire permanent residence after five continuous years. They do not have to apply for any kind of document to confirm their right to reside in an EU member state.
In the UK, an application can be made to the Home Office pursuant to The Immigration (European Economic Area) Regulations 2016 for a residence or permanent residence card or certificate confirming the right to reside in the UK. The Home Office fee is £65.
If an application for a permanent residence document is made and the applicant was a student or self-sufficient person at any point during the qualifying five year period they are relying on – and any period can be used as long as it’s continuous – the Home Office will check that they held comprehensive sickness insurance during that period of time.
For example, an EEA national intends to apply for a permanent residence document in June 2017 and will rely on the period from June 2012 – June 2017. They were a student from June 2012 – July 2013 and then worked continuously. They will need to demonstrate that they satisfied the comprehensive sickness insurance requirement from June 2012 – July 2013 otherwise the application will be refused. If they cannot satisfy the requirement, they will be able to apply in July 2018 (assuming they continue to be employed/self-employed).
Does having access to the NHS count as meeting the requirement to have comprehensive sickness insurance?
Frustratingly, even though EEA nationals are entitled to use the NHS, the Home Office’s position is that this does not satisfy the requirement as set out in EU law (which was drafted around the presumption that the majority of EU member states do not have an NHS and therefore rely on a comprehensive sickness insurance framework).
Surely that can be challenged?
There have been challenges. Of significance, in 2014, the UK’s Court of Appeal agreed with the Home Office’s position in a case called Ahmad v Secretary of State for the Home Department [2014] EWCA Civ 988. The transcript is here and it’s worth a read as it sets out a lot of important detail as to what EU law states and why access to the NHS is not considered to comply.
Winning the case meant that the Home Office was able to continue to refuse applications made by those who needed comprehensive sickness insurance and who did not have it.
The European Commission takes a different approach to the Court of Appeal and does not believe that the UK’s position on the NHS is lawful – but to date, also frustratingly, has taken no decisive action.
But the Home Office has somewhat softened its stance of late. No doubt in response to some pretty damaging headlines, it issued a statement on 1 March 2017 in which it said:
‘EU citizens will not be removed from the UK or refused entry solely because they do not have this insurance.’
The Home Office’s position means that those who need comprehensive sickness insurance according to EU law but who don’t have it, won’t be regarded as living in the UK unlawfully. This is good news for students and self-sufficient persons who are living in the UK on a temporary basis.
However, if those individuals wish to obtain a document from the Home Office confirming that they have acquired permanent residence they will need to show that they held comprehensive sickness insurance covering any time spent as a student or self-sufficient person.
If the EEA national’s partner is British, is comprehensive sickness insurance still needed?
Unless the EEA national is a worker or self-employed person in their own right, the Home Office’s position is that they will need it if they are intending on making an application for a permanent residence document. This includes those who have stayed at home to look after children.
What would be accepted as evidence of comprehensive sickness insurance?
Private health insurance counts as long as it covers “the majority of risks” according to the Home Office guidance. This can however be expensive or even unobtainable for many individuals.
A valid European Health Insurance Card (EHIC) also counts providing it was issued by an EU member state other than the UK . The Home Office’s position is that those who intend to remain in the UK permanently should have more than an EHIC as evidence of comprehensive sickness insurance. Students/self-sufficient persons who apply for a registration certificate as evidence of their status may be asked to confirm that they intend to remain in the UK on a temporary basis only.
However, the Home Office guidance confirms that EHIC cards are acceptable in applications for permanent residence documents. Therefore, if the intention subsequently changed, it should be fine to rely on an EHIC.
Finally, evidence of a reciprocal arrangement between the UK and the EU member state the applicant is from would be acceptable. The Home Office guidance refers to forms S1, S2 or S3 and further information about them is available here. Our opinion is that insistence on a form by the Home Office is likely to be unlawful if the applicant can otherwise prove a reciprocal arrangement is in place or was at the relevant time.
Those who are unable to obtain such evidence and make an application that is refused may be able to challenge the decision, depending on their particular circumstances. Legal challenges cover really specific legal points that relate to a particular individual’s own circumstances. In the case of Ahmad (the case referred to above), the focus was narrow and related to the NHS issue. There are other avenues that can be explored in litigation if a person whose application is rejected wants to fight and can afford to litigate (either through their own funds or via support from interested third parties).
What will happen once the UK has left the EU?
The UK Government will be introducing a new system for EEA nationals and their family members once the UK has left the EU (and it is likely this will be implemented on a voluntary basis before Brexit). It has stated that it will not require applicants to demonstrate that they have held comprehensive sickness insurance in order to be able to obtain either temporary or settled stated. For many who should, but do not, have comprehensive sickness insurance, it it likely to be best to wait and then make an application under the new process.
Our analysis on Brexit immigration developments is here and we’ll keep updating it as further developments arise.
How we can help
Our team has assisted significant numbers of EEA nationals and their family members to obtain documents confirming their permanent residence status in the UK and we understand that this is a worrying time.
If you are concerned about your status and would like one of our specialists to review your situation and provide some initial guidance on a no obligation basis, please contact us.
