The Right to Reside? Comprehensive Sickness Insurance Coverage and residency in the United Kingdom

Comprehensive Sickness Insurance Coverage and residency in the United Kingdom

Felicity Handley

A little known health insurance requirement for EU citizens living in the UK could have a potentially vast impact upon the right of these individuals to remain in the country after Brexit.

Under the current Immigration laws, EU citizens residing in the UK that are classified as either students or self-sufficient persons are required by the government to have Comprehensive Sickness Insurance (CSI) coverage in order to eligible for British permanent residency.

Under Article 7 of the Citizen’s Directive, this insurance is also required if citizens wish to be lawfully present in the EU. This means that without Comprehensive Sickness Insurance, not only are the approximately one million students and self-sufficient EU citizens living in the UK ineligible for British permanent residency, but that do not have the legal right of residence in the UK, and could potentially be asked to leave once Britain exits the EU.

This issue has come to light recently, after several accounts have surfaced reporting cases in which EU citizens were asked to make arrangements to leave the UK after their applications for British permanent residency were denied. These requests, made in the wake of the UK’s choice to exit the European Union, were refused on the grounds that applicants could not provide evidence of CSI coverage. Amongst those most affected by the CSI coverage requirement are EU citizen spouses and students living in the UK. In many cases, EU citizens living in the UK have not been aware that they needed to have CSI coverage at all, believing that their access to the National Health Services (NHS) in the UK would be sufficient.

A briefing on the legal status of EU citizens in the UK published on the Free Movement website draws attention to critical legal issues surrounding the “rights of residence” of EU citizens currently living in the UK. According to the briefing, new regulations introduced on the 1 February 2017 under Directive 2004/38/EC suggest that the Home Office has the right to remove EU citizens from the UK at any time, if it is determined that they do not have the “right of residence”. The “right of residence” is established in Article 7, and states that EU citizens have the right to exercise their Treaty rights to reside in another Member State after an initial 90 days period provided that they are either working in the host state, or have CSI coverage if they are not working or actively seeking work.

In the wake of Brexit, EU citizens in the UK face great uncertainty about their right to continue living in the UK. Of the approximately three million EU citizens currently living in the UK, an estimated third are neither working nor actively seeking work. Without CSI coverage, these citizens do not have the legal right of residence in the UK, despite the fact that they have been able to access NHS services freely, and were in many cases unaware that CSI coverage was needed. Their futures are now in flux as the Brexit negotiations commence.

In the wake of Brexit, EU citizens in the UK face great uncertainty about their right to continue living in the UK. Of the approximately three million EU citizens currently living in the UK, an estimated third are neither working nor actively seeking work. Without CSI coverage, these citizens do not have the legal right of residence in the UK, despite the fact that they have been able to access NHS services freely, and were in many cases unaware that CSI coverage was needed. Their futures are now in flux as the Brexit negotiations commence. Even in the case of a positive outcome, in which EU citizens are granted the extension of their pre-existing rights, EU citizens living in the UK presently without CSI coverage do not have the right to live there according to the UK government’s interpretation of Article 7, and thus will lose a right that they thought they had.  It is uncertain what this will mean in terms of their ability to remain in the UK.

The Home Office has responded to the briefing by stating that its interpretation is incorrect, and that the regulations are neither new, nor will the UK government remove any EU citizens if they do not have proof of CSI coverage.

A spokesperson for the Home Office is recorded as stating, “It is completely wrong to say that we have new powers to deport EU citizens without comprehensive sickness insurance. EU citizens will not be removed from the UK or refused entry solely because they do not have this insurance. Their right to remain will remain unchanged while we are a member of the European Union and they do not need any additional documents to prove their status.”

While this statement is a welcome reassurance by the Home Office to EU citizens affected by the CSI coverage requirement, it is important to note that it has not been incorporated into official policy, nor does it give EU citizens living in the UK without CSI coverage the categorical right of residence. Furthermore, while the Home Office statement denies that any EU citizens residing in the UK will be removed if they cannot provide proof of CSI coverage, it is unclear whether the failure of EU citizens to comply with the requirements of lawful residence in the UK may subsequently have implications for any future immigration applications.

While EU citizens may not be removed from the UK if they fail to meet the criteria that establish the right of residence, without CSI coverage, these citizens are unable to apply for British permanent residency. The UK department of Visas & Immigration, the requirement demands that all applicants for British permanent residency must have resided in the UK for a continuous period of five years, and must be able to prove that they had CSI coverage for the entire five-year period.

Additionally, while EU citizens may not be removed from the UK if they fail to meet the criteria that establish the right of residence, without CSI coverage, these citizens are unable to apply for British permanent residency. The UK department of Visas & Immigration, the requirement demands that all applicants for British permanent residency must have resided in the UK for a continuous period of five years, and must be able to prove that they had CSI coverage for the entire five-year period.

The ability and ease with which EU citizens living in the UK are able to apply for permanent residency has become particularly significant in the past year, as EU citizens living in the UK face doubt about their futures.  Those who have lived in the country for considerable periods of time, and have spouses, families, jobs and support networks in the UK equally experience this sense of insecurity. These citizens believe that they will be vulnerable once Britain formally exits the European Union.

The sense of uncertainty and fear has been reflected in a 50% increase in the number of EU citizen applicants seeking British permanent residency since the results of the Brexit referendum, from 36 555 people between April to June 2016, to 56, 024 between July to September. Despite this increase, the UK government has failed to provide specific reassurance to EU citizens living in the UK that they will be allowed to remain after Brexit. The rejection rate of British permanent residency applications made by EU citizens currently hovers at around 28%.

This fear has been further expounded upon by reports of discrimination towards EU citizens living in the UK, who are unable to provide proof of their right to reside in the UK indefinitely. Patricia Connell, of the website France in London, notes that she has heard reports of EU citizens being denied mortgages by British banks if they were unable to provide evidence of British permanent residency. Further reports have surfaced, claiming that employers have only offered fixed term contracts to EU citizens who were unable to provide proof of their right to permanent residency. If substantiated, this would constitute a violation of the Equality Act 2010.  

It is vital that the UK government take immediate measures to reassure EU citizens living in the UK of their right to remain there after the formal exit of the UK from the European Union. This reassurance must include an official clarification of the new immigration regulations introduced under Directive 2004/38/EC, and the entitlement of EU citizens who do not have CSI coverage to a right of residence.

It is vital that the UK government take immediate measures to reassure EU citizens living in the UK of their right to remain there after the formal exit of the UK from the European Union. This reassurance must include an official clarification of the new immigration regulations introduced under Directive 2004/38/EC, and the entitlement of EU citizens who do not have CSI coverage to a right of residence. Furthermore, the UK government must take measures to introduce a specific process of naturalisation for EU-citizens. The current permanent residency application procedure is overly complex and ill-equipped to deal with the particular needs and circumstances of EU citizens residing in the UK. This is further exacerbated by the fact that there is no reliable population register of EU citizens in the UK. Measures must be taken to simplify and streamline the existing administrative procedures.

In light of the Brexit vote, both official reassurance and a reconsideration of the current naturalisation process are imperative, and will go a long way towards ameliorating the anxiety of more than three million EU nationals currently living in the UK. It is crucial that the dignity, security and legal rights of these citizens be respected throughout the Brexit negotiations, and that at no point they be reduced to mere ‘bargaining chips’.

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