Residence for EU citizens in the UK post-Brexit, and healthcare

Another day and another “that can’t possibly be true, can it?” Brexit moment.

This morning I read this in The Guardian, quoting Helena Kennedy and the House of Lords work on the rights of EU citizens to stay in the UK post-Brexit. The piece contains this line:

People living in the UK for more than five years may not be eligible for permanent residency because of the little-known requirement for students and non-workers to have private healthcare.

Private healthcare? Come on, you just register with the NHS. That’s what universities like UCL advise their EU-EEA students to do.

So while the NHS is sufficient if, well, you know, you actually want healthcare, it is not sufficient to be classed as
comprehensive sickness insurance (CSIC) under Article 7 of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (PDF here). Colin Yeo has a detailed write up of why that is the case here – with plenty of practical tips, and how – if you are a student or not in employment – as an EU citizen in the UK you can get such insurance.

All this depends on a Court of Appeal case known as Ahmad, the judgment of which can be found here (thanks Jonathan Kingham on Twitter). The important conclusion is point 71:

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.

But the devil is in the detail. Mrs Ahmad is a Danish citizen, and the UK has a healthcare costs waiver with Denmark – we know that thanks to a PQ from Labour MP John Mann (table at the bottom here). The waiver, as I understood it when I lived in Denmark, was simply because it was administratively easier than establishing a payment system, not that this was intended to deny people rights. I also find it odd that how this system works was not examined in the case. Also one could also I suppose conclude that were Ahmad, say, a French citizen – a country with which a mutual recuperation of costs system exists – the outcome of the case might have been different.

So while the case law looks pretty damned bad for now, I do wonder whether this interpretation of Article 7 of 2004/38/EC would stand up to scrutiny in the European Court of Justice. Plus as this issue is causing major headaches for EU citizens in the UK at the moment (as The Guardian documents here) it’s high time there was more clarity on this issue before Brexit actually might legally happen.

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