Thousands of EU citizens may have lost residence rights and welfare benefits in the UK in the past due to an obscure provision recently declared illegal by the EU Court of Justice.
Citizens’ rights group the3million, which defends EU nationals in Britain, is now looking for testimonies from people who experienced difficulties regarding the sickness insurance requirement to qualify as lawful residents prior to Brexit, in order to seek compensation.
What is ‘comprehensive sickness insurance’
Under EU’s free movement rules, EU citizens who move to another country of the European Union and are economically inactive need to have ‘comprehensive sickness insurance’ (CSI) to avoid becoming a burden for the host state. This rule has been applied in different ways in EU countries, depending on the national circumstances.
Before Brexit, when they could move to Britain without obstacles, EU citizens did not need to register with British authorities and they could use the national health service (NHS) showing only their passport and proof of residence, like British citizens.
The NHS registration, however, was not considered sufficient for the purpose of lawful residence for people who were economically inactive, such as students, spouses of British or EU citizens able to support themselves financially, or people who previously had a job but were no longer working.
Comprehensive sickness insurance was requested for any period of inactivity or these would not count as lawful. Some types of healthcare insurance were also not recognised.
With nothing asked from the NHS and hardly any interaction with the Home Office, affected EU citizens would typically become aware of this little-known obligation when coming into contact with public authorities, for instance when applying for a permanent residence document and for citizenship, for a British passport for a new-born child, or for social benefits, all of which would be denied without CSI.
“I applied for a British passport for my son. It was rejected on the grounds of me not having CSI while a student. Instead, I had to pay over £1,000 to apply for my son to be naturalised. I should have not had to pay that,” an EU citizen told the3million.
A post-Brexit nightmare
The issue took enormous proportions after the Brexit referendum, when thousands of EU citizens started to apply for permanent residence cards and for citizenship to secure their rights in the country. Many were rejected because of healthcare insurance gaps.
Given the scale of the problem, the UK government waived the CSI requirement in the EU settlement scheme, the new residence system to which citizens from the EU, Norway, Iceland, Liechtenstein and Switzerland had to apply to stay in the UK after Brexit.
Not in line with EU law
In 2012, when it was a member of the EU, the European Commission had launched a legal action against the UK for not considering the entitlement to NHS treatment sufficient for residence. This was in breach of EU’s free movement rules, the Commission argued.
The case did not progress and, with Brexit, the UK decided to end free movement of people with EU countries. The Commission, however, resumed the procedure in December 2020, just before the end of the post-Brexit transition, to insist on this right for EU citizens already in Britain.
In March this year, the Court of Justice of the EU ruled on a separate case that being able to use the NHS should have satisfied the CSI requirement with no need of separate insurance.
Assessing the impacts
“It is hard to estimate how many people in the UK have been impacted by the wrong application of these EU rules over the years,” Monique Hawkins, policy and research officer at the3million told Europe Street.
Consequences include the rejection of permanent residence and therefore the right to a stable live in the UK, the refusal of naturalisation with the loss of voting rights, the refusal of citizenship for children, the exclusion from welfare benefits, including social housing and homelessness assistance, and easier deportation decisions.
“I applied for British citizenship in 2015. It was rejected in 2016 on the grounds of me not having CSI during some student years. I in fact did have private health insurance coverage from an insurance policy of mine from my EU country of birth but it was deemed not comprehensive enough. As a result, I lost the application fees, which were more than £1,000, and had to reapply later without the student years. I also lost the opportunity to vote at the referendum in 2016.”– EU citizen testimony
The3million have now launched a campaign on ‘CSI justice’ asking people to come forward and share the problems they faced in relation to CSI to seek restitution and the reversal of unfair decisions. EU citizens are also invited to say if they unnecessarily paid for healthcare insurance. In addition, the group calls on lawyers and advisors to share difficulties experienced by their clients.
Changing the rules
Meanwhile, under the EU withdrawal agreement, the UK is obliged to comply with the rulings of the EU Court of Justice on matters raised before the end of 2020. To date, the government has not said how they intend to change CSI rules.
“Encouragingly, we have seen UK judgments taking the EU Court of Justice decision into account,” the3million said. During a debate in parliament in May, Baroness Joanna Penn said on behalf of the Home Office that the government was “not disagreeing with the finding of the court in this case” but was seeking to “understand fully its implications” and updates would be provided “in due course.”
The3million this week wrote to the new immigration minister, Tom Pursglove, asking when policy changes will be introduced and when work will start “to identify, support and compensate” the people impacted by the unjust requirement.
Claudia Delpero © all rights reserved
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