Comprehensive Sickness Insurance (CSI) Cover and the NHS
The preliminary ruling of the Court of Justice of the European Union in C-247/20 VI v Commissioners for Her Majesty’s Revenue & Customs concerns the interpretation of EU law in relation to the requirement of comprehensive sickness insurance cover (“CSI”) in the host Member State.
Dispute in the main proceedings
The dispute in the main proceedings concerned a family residing in Northern Ireland: VI and her husband, Pakistani nationals, and their four children. Their son, who has Irish nationality, was born in Northern Ireland in 2004. The dispute involved VI’s right to receive Child Tax Credit and Child Benefit during two particular periods, which in turn depended on VI’s right of residence in the UK during these periods. HMRC’s position was that VI had no right of residence as she was not covered by CSI during those periods and therefore she was not entitled to these funds.
Questions referred for a preliminary ruling
The questions referred by the referring court concerned the interpretation of provisions of UK domestic law and the compatibility of provisions of UK domestic law with EU law, on neither of which the Court has jurisdiction to rule. The Court confirmed that it has jurisdiction to provide the national court with all the guidance as to the interpretation of EU law necessary to enable that court to determine whether those national rules are compatible with EU law and to determine the case before it. Having found that the referring court sought to ascertain the extent to which the requirement to have CSI in the host Member State was applicable to VI and her son during the relevant periods and, if necessary, whether the insurance cover which they had was sufficient to satisfy that requirement, the Court reformulated the first two questions.
The referring court was, essentially, asking whether EU law must be interpreted as requiring a Union citizen child and the parent who is a primary carer of that child to have CSI:
- After having acquired a right of permanent residence in the host State, in order to retain their right of residence; and
- Prior to acquiring a right of permanent residence in the host State.
The thirst question concerned, not the scope of the requirement to have CSI, but how that requirement could be met. Particularly, whether the Common Travel Area reciprocal arrangements in place regarding Health Insurance cover between the United Kingdom and the Republic of Ireland constituted CSI.
The Court found the third question to be inadmissible. The request for a preliminary ruling as regards that question did not satisfy the first and last requirements of Article 94 of the Rules of Procedure:
In addition to the text of the questions referred to the Court for a preliminary
ruling, the request for a preliminary ruling shall contain:
(a) a summary of the subject matter of the dispute and the relevant
findings of fact as determined by the referring court or tribunal, or, at
least, an account of the facts on which the questions are based;
(b) the tenor of any national provisions applicable in the case and, where
appropriate, the relevant national case-law;
(c) a statement of the reasons which prompted the referring court or
tribunal to inquire about the interpretation or validity of certain
provisions of European Union law, and the relationship between
those provisions and the national legislation applicable to the main
Proceedings.
Jurisdiction and application for an expedited procedure
In view of Brexit, the Court confirmed its jurisdiction to make this preliminary ruling on the basis that Article 86 of the Withdrawal Agreement gave the Court continuing jurisdiction to give preliminary rulings on requests from courts and tribunals in the UK made before the end of the transition period and this request was made prior to that.
The Court rejected the application for an expedited procedure by the referring court, considering the matters not to be of such an urgent nature that it would be justified to derogate, exceptionally, from the ordinary applicable rules of procedure.
Consideration of the questions
The Court first considered whether a Union citizen child who has acquired a right of permanent residence, and the primary carer of that child, are required to have CSI in order to retain the right of residence in the host State. It was swiftly held that the Union citizen child is not required to have CSI in these circumstances, as the right to permanent residence is not subject to the conditions in Chapter III of Directive 2004/38 (“the Directive”), including the condition to have sufficient resources and CSI in Article 7(1)(b).
In relation to the parents of the Union citizen child with permanent residence, it was confirmed that they did not come within the meaning of “family member” in the Directive, as this only includes direct relatives in the ascending line who are dependent on the Union citizen, not vice versa, as is the case with a child Union citizen who is dependent on their parents. Nonetheless, the Court confirmed the settled case law regarding the derivative right of residence of parents who are primary carers of a Union citizen child and reside with them in the host State. This right must be considered as necessarily implied under Article 21 TFEU for the purposes of ensuring the effectiveness of the right of residence conferred by EU law on the Union citizen child. The Court concluded that, as the conditions to have sufficient resources and CSI did not apply to a Union citizen child who has acquired permanent residence, they also did not apply to the parent who is their primary carer.
Secondly, the Court considered whether, prior to having acquired a right of permanent residence, both a Union citizen child and their parent caring for them must have CSI. The Court confirmed that Article 7(1)(b) of the Directive requires not only the Union citizen, but also the members of their family who reside with them in the host State to have CSI. It was admitted that the English version of the provision has a certain ambiguity, but other language versions of the provision make it clear. Whilst, as above, the parent of a Union citizen child is not considered their family member for the purposes of the Directive, given that the child’s right of residence extends to the parent who is a primary carer under Article 21 TFEU, those conditions apply by analogy to the parent.
In summary, EU law must be interpreted as meaning that:
- After the Union citizen child acquires permanent residence, neither the child nor the primary carer(s) are required to have CSI to retain their right of residence.
- Prior to the Union citizen child acquiring permanent residence, both the child and the primary carer(s) must have CSI in order to have a right of residence under the Directive and derived under Article 21 TFEU, respectively.
Comprehensive Sickness Insurance and the NHS
Having established the interpretation of the Directive and Article 21 TFEU regarding in what circumstances and to whom the requirement to have CSI applies, the Court turned its attention to how the requirement can be satisfied. It confirmed that the requirement to have CSI is satisfied when the child has CSI that covers the parent and vice versa. The documents before the Court showed that VI and her son were affiliated with the NHS; the UK’s public sickness insurance system offered free of charge, in the Court’s words.
The Court confirmed that it is open to the host Member State to make affiliation to its public insurance system of an economically inactive Union citizen subject to conditions, to ensure that the citizen does not become an unreasonable burden on the public finances of the host State, provided these conditions comply with the principle of proportionality. The maintenance of comprehensive private sickness insurance enabling the reimbursement to the State of health expenses incurred, or contributory payments to the public sickness insurance system were given by way of examples.
Notwithstanding this, the Court unambiguously confirmed that 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).
It is a different matter whether access to the NHS affects the requirement to have sufficient resources not to become a burden on the social assistance system of the host Member State. This requirement is found in the first limb of Article 7(1)(b) of the Directive and it is separate to the requirement to have CSI, which is found in the second limb of the same Article. The Court concluded that, in a situation such as this, where the economically inactive Union citizen is a child, one of whose parents, has worked and was subject to tax in the host State during the relevant period, affiliation free of charge to the public sickness insurance system of that State cannot be considered to constitute an unreasonable burden on the public finances of that State. It would be disproportionate to deny them a right of residence under Article 7(1)(b) of the Directive on that sole ground.
Commentary
The UK’s position has so far been that access to the NHS is not sufficient to meet the requirement to have CSI and that economically inactive Union citizens (students or self-sufficient persons) and their family members needed private comprehensive health insurance (alternatively, a European Health Insurance Card for persons who did not intend to stay in the UK permanently, or to be covered by reciprocal arrangements).
In practice this ruling could mean that, even if a person did not previously have a right to reside in the UK under EU law solely on the basis of not meeting the requirement to have CSI, once they are registered with or otherwise access the NHS, the requirement to have CSI is satisfied and the person acquires a right of residence. Whilst there are charges imposed for some types of NHS treatment to people that are not lawfully or ordinarily resident in the UK, there were no charges for individuals that had a right of residence in the UK under EU law (when that was applicable). Such an obligation to pay for NHS treatment would, thus, have been extinguished immediately by the very fact of having accessed the NHS, provided that that conferred a right of residence by satisfying the CSI requirement.
The question of whether the requirement of the first limb of Article 7(1)(b) is also met, namely that the person has sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State, is distinct and has to be considered, in accordance with the principle of proportionality. The Court confirmed that, in circumstances such as those of VI and her family, access to the NHS free of charge, in and of itself, does not amount to an unreasonable burden on the UK’s public finances. Nonetheless, this will be fact specific and in different circumstances, a different conclusion could be reached.
It should be noted that Union citizen students, on account of being economically inactive, are also required to have CSI under Article 7(1)(c). However, contrary to Article 7(1)(b), that provision does not require having sufficient resources so as not to be a burden on the State. Therefore, Union citizen students and their family members who had access to the NHS arguably had a right of residence in the UK without any further consideration, as both requirements of Article 7(1)(c) would have been met.
Whilst Brexit and the end of the transitional period has signalled the end of rights of residence under EU law and its (now repealed) domestic implementing legislation, this ruling will continue to be relevant for some time. Although with reference to past periods, the question of whether a person was lawfully in the UK by virtue of EU law is relevant to whether they were entitled to public funds, whether they were detained or removed unlawfully, whether they can now successfully apply for indefinite leave to remain or to naturalise as a British citizen. It affects residence, suitability and good character requirements. As such, if you were, at any point, a non-working Union citizen or their family member (including their primary carer), it is worth considering whether you can argue that you had a right to reside in the UK during that time in the absence of private health insurance; in reliance on access to the NHS.
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