If you are an EEA/EU citizen or their family member and you would wish to qualify for a right of residence then eventually a right of permanent residence you have to meet certain requirements. Following the Brexit vote to leave the EU, it is more important than ever to make sure that you do currently meet the requirements. The Government has been very vague on what the rights and entitlements of EEA nationals already living in the UK will be after Brexit. Given the uncertainties it is understandable that those EEA nationals living in Britain will want to apply for their Residence Permits sooner rather than later.

It gets even more confusing that EEA citizens and their family members are allowed to use the NHS in the UK, but according to the Home Office the NHS does not count as comprehensive sickness insurance.

It may very well be that the approach of the Home Office is an infringement of the EEA Regulations. That issue is currently before the European Court of Justice. But until a decision on that case is reached we have to manage the minefield that is the current Home Office approach to the issue of Comprehensive Sickness Insurance.

Who needs comprehensive sickness insurance?

EU law gives a right of entry to the UK to any EEA citizen. However, only certain EEA citizens and their immediate family qualify for a right of residence. Included in this is the right to acquire permanent residence after five years of a qualifying activity.

The main categories where EEA citizens can qualify for a right of residence are:

• Workers
• Self employed persons
• Self sufficient persons with comprehensive sickness insurance
• Students with comprehensive sickness insurance

Two of these categories require the EU citizen to hold Comprehensive Sickness Insurance.

Traditionally this requirement has always existed, but until recently decisions to refuse EEA applications for lack of comprehensive sickness insurance were unheard of. That was until Brexit reared it’s head. Now refusals of applications on this ground are worryingly commonplace. The UK effectively changed its approach and started enforcing the requirement to hold Comprehensive Sickness Insurance as of 20 June 2011.

The family members of self sufficient persons and students will also need comprehensive sickness insurance to qualify for their own right of residence.

The UK’s implementation of EU law has always required the family members of self sufficient EEA citizens to possess comprehensive sickness insurance as well as the EEA citizen in order for them to have a right of residence. However; from 6 April 2015 the same rule has been applied to the family members of EEA students. This has caused confusion amongst applicants.

What counts as comprehensive sickness insurance?

This is a surprisingly complicated question to answer. Most of the EU States use a system of health insurance to provide the public with health care. In the UK, uniquely, we have the National Health Service, which is not insurance based but instead simply provides free health care at the point of need. The EU rules on the need for Comprehensive Sickness Insurance for self sufficient persons and students did not take account of the the UK’s unusual NHS situation.

The purpose of the rules was that self-sufficient persons and students should not become unreasonable burdens on state resources. In the words of the Supreme Court in the recent case of Mirga v SSWP, “economically inactive Union citizens using the host member state’s welfare system to fund their means of subsistence”.

However access to the NHS is not enough on it’s own

An EEA national living in the UK is allowed to use the UK’s National Health Service. But the Home Office is adamant that this does not count for the purposes of EU law as having Comprehensive Sickness Insurance.

The Home Office tough stance on the topic was upheld by the Court of Appeal in the of Ahmad v Secretary of State for the Home Department [2014] EWCA Civ 988:

70. I would dismiss this appeal. If an EEA national enters the UK and is not involved in an economically active activity, for example because she is a student, her residence and that of her family members will not be lawful unless she has CSIC [Comprehensive Sickness Insurance Cover] while she is a student in the five years following her arrival. Accordingly her family members will not be able to qualify for permanent residency in the UK.

71. So Mrs Ahmad had to have CSIC while she was a student. This condition must be strictly complied with. The fact that she would be entitled to treatment under the NHS, and was thus at all times in substantially the same position as she would have been had she had CSIC, is nothing to the point. Her failure to take out CSIC put the host state at risk of having to pay for healthcare at a time when the Ahmads had not then achieved the status of permanent resident and she was not economically active.

So, we know from Ahmad that access to the NHS does not count. We must therefore consider what qualifies as Comprehensive Sickness Insurance, then? There are three potential ways to meet the requirement.

1. Purchase comprehensive private health insurance

One way forward is to purchase private health insurance from a private company. This is relatively cheap if you are young and healthy. But it could be prohibitively expensive or even impossible if you are older or already suffering from a serious illness.

Such a policy of insurance will need to be “comprehensive”. The level at which sickness insurance becomes “comprehensive” can be something of a mystery. The Government says it means “full health insurance”, which raises the question of what does “full” mean.

The Guide to Supporting Documents on the EEA (QP) form is a helpful place to start because it sets out the Home Office view. It suggests that the insurance should

“cover you (and your family members if applicable) for the majority of risks while you are in the UK”.

But clearly this does not say that “all risks” must be covered, so again we appear to be lacking clarity here.

The closest there is to a formal Home Office policy is in the formal guidance document for Home Office staff European Economic Area nationals qualified persons. This instructs officials considering such applications as follows:

You can accept an EEA national or their family member as having comprehensive sickness insurance if they hold any form of insurance that will cover the costs of the majority of medical treatment they may receive in the UK.

You must take a proportionate approach when you consider if an insurance policy is comprehensive. For example, a policy may contain certain exemptions but if the policy covers the applicant for medical treatment in the majority of circumstances you can accept it.

Again the so called policy document leaves as many questions unanswered as it pretends to answer. It almost leaves the decision open to be made on a case by case basis by the officer dealing with the case.

We have heard of a case where a couple were refused residence documents by the Home Office because their health insurance policy did not cover existing health conditions. However the reality of that no policy does cover existing conditions. The couple lost their appeal to the First-tier Tribunal on the basis that they might have a pre-existing health condition, even though there was no evidence that they actually did (Tzur IA/10402/2015). The decision was later overturned in the Upper Tribunal and it transpired later that Home Office policy is actually that pre-existing health conditions do not need to be covered. So again we see that the confusion continues unabated with even various Home Office departments applying the so called policy differently.

2. Use a European Health Insurance Card

The EEA(QP) form states that you can use a European Health Insurance Card (EHIC) as evidence of comprehensive sickness insurance, but only if you make a declaration that you do not intend to stay in the UK permanently.

This may be helpful for some, but many would rather the flexibility to stay permanently if opportunities in the UK come their way.

You can find more information about applying for a EHIC here.

If applying for permanent residence documents, a EHIC issued by another Member State (not the UK) can be used at that stage. Home Office policy document European Economic Area nationals qualified persons instructs officials thus:

3. Prove you are protected by reciprocal arrangements with your home EEA country

The EHIC exists because of multilateral and reciprocal agreements between EU countries which mean that the cost of medical care in the host state can be recovered from the state of origin so long as that person is entitled to healthcare in that state.

The court also held that the Home Office was under no obligation to find out what the position was and that it was entirely up to Mrs Ahmad to prove her own case! Very unfair you may think and perhaps rightly too.

The way to prove that you have comprehensive sickness insurance that covers you in the UK without a EHIC is to use forms S1, S2 or S3. These are specifically mentioned by the Home Office in the guidance notes.

For more information about the forms, click here.

What can you do now?

If you do not currently have comprehensive sickness insurance and need it, or you would have previously needed it but did not have it, you can:

1. Wait and see what happens with the UK’s negotiations regarding Brexit
2. Become a worker or self employed person. Neither requires comprehensive sickness insurance.
3. Buy comprehensive health insurance now and start building up a right of residence. This could be expensive
4. Get involved with a campaign group like The3Million, contact your MP and MEP, make a complaint to the EU Commission
5. Contact us if you require professional and up to date advice from a solicitor. You can book an appointment by calling us on 020 8401 7352 or email us at info@solicitorsfirm.com