The Home Office guidance on European Economic Area nationals: qualified persons (“The Guidance”), was updated on 31 October 2022 to provide some clarity on its stance on the comprehensive sickness insurance requirement.
The change comes following the Court of Justice of the European Union judgment in the case of VI v HM Revenue and Customs C247/20, handed down on 10 March 2022.
What is the Comprehensive Sickness Insurance (CSI) Requirement?
European nationals who are or were present in the UK as students or self-sufficient persons under the Immigration (EEA Regulations) 2006 (as amended in 2016) (“The Regulations”) and their family members, were required to have comprehensive sickness insurance in order to be considered as qualified persons. After 5 years in the UK as a qualified person, an EEA national and their family members would acquire a right of permanent residence.
Under Appendix EU, an individual would acquire pre-settled status or settled status under the Immigration Rules based on length of residence in the UK, rather than whether they were here as a qualified person. Therefore, many individuals have been able to acquire settled status (indefinite leave to remain), without demonstrating that they have held comprehensive sickness insurance.
There has been wide-spread criticism that the Comprehensive Sickness Insurance requirement has not been well publicised, and that there has been a lack of clear information on the Home Office websites relating to exactly when an EU national is required to obtain CSI. The UK's position for some time has been that accessing the NHS would not constitute comprehensive sickness insurance.
The Case of VI v HM Revenue and Customs C247/20
A full outline of the case can be found here. In summary, in the case of VI v HM Revenue and Customs C-247/20, the CJEU held that once an individual was “affiliated” to the NHS, they had CSI under the Free Movement Directive. Paragraphs 68 and 69 of the judgment confirmed:
“VI and her son were affiliated during the period in question… to the United Kingdom's public sickness insurance system offered free of charge by the National Health Service..
… once a Union citizen is affiliated to such a public sickness insurance system in the host Member State, he or she has comprehensive sickness insurance within the meaning of Article 7(1)(b).”
The New EEA Qualified Persons Guidance
The guidance has now been updated to reflect the above judgment, confirming on page 41, that if an individual was ‘ordinarily resident' in the UK, they will be considered to have held CSI. The guidance states:
““Affiliated” to the NHS was not defined by the CJEU, but is considered to mean entitled to comprehensive and free NHS treatment. Under domestic law, an individual has such an entitlement when they are “ordinarily resident” in the UK.”
The guidance goes on to provide the following definition for ordinarily residence:
‘“Ordinarily resident” means that an individual's residence in the UK is voluntary, lawful and for a settled purpose. To assess whether an individual was ordinarily resident in the UK, you must apply the following approach:
- EEA nationals – until 31 December 2020 EEA nationals living in the UK did not need to be exercising Treaty rights or have the right to reside under the Free Movement Directive in order to be considered ordinarily resident for the purpose of accessing the NHS free of charge – therefore, an EEA national could be regarded as ordinarily resident, and thus to have held CSI, even if they were not a qualified person
- Non-EEA nationals – they must demonstrate that their EEA national family member was exercising Treaty rights, had a right to reside under the Free Movement Directive or had a right of permanent residence in order for the non-EEA national family member to be considered ordinarily resident – therefore, if a non-EEA national cannot demonstrate that their EEA national family member was so resident, they will not be regarded as having held CSI on the basis of being “affiliated” to the NHS (because they would not have been entitled to comprehensive and free NHS treatment)'
There is a slight contradiction in the above guidance on EEA citizens in the reference to ‘even if they were not a qualified person.' For a self-sufficient person/student to be a qualified person, they would need to hold CSI, which as set out above would be accepted as soon as the EEA national became ordinarily resident in the UK. Therefore, there does not appear to be a scenario in which it would be possible for a self-sufficient person/student to be ordinarily resident in the UK and not be a qualified person.
There is also a distinction between EEA nationals and their non-EEA family members. Family members are required to demonstrate that the EEA national was ‘exercising treaty rights'. In line with the above, this should mean that once a self-sufficient/student EEA national becomes ordinarily resident, they are exercising treaty rights as they hold CSI. However, there is some ambiguity given the reference to ‘even if they were not a qualified person.'
Relevance of the New EEA Qualified Persons Guidance
The UK's definition of comprehensive sickness insurance has excluded access to the NHS as being sufficient to meet this requirement. Many individuals may therefore have been refused a document certifying permanent residence under EU law, access to public funds, and even prevented from obtaining British citizenship due to the previous definition.
Whilst rights of residence under EU law has come to an end, the consideration of whether a person was previously lawfully in the UK by virtue of EU law is still relevant, for example, in accessing public funds or when individuals are applying to naturalise as British citizens. In relation to naturalisation, the naturalisation by discretion guidance has been updated on page 49 to reflect the new EEA qualified persons guidance.
The good character guidance still refers to consideration as to whether individuals held CSI, and if they did not, if there were any reasons for this. Therefore, it is worth considering whether arguments can be made as to whether an individual held comprehensive sickness insurance, relying on affiliation with the NHS.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.