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EU free movement, the NHS and comprehensive sickness insurance

With the government’s ‘immigration health surcharge’ having come into force on 6 April, efforts to gain funds from non-EEA ‘temporary’ migrants have been stepped up. There is to be an annual charge and this is payable upfront, though will be refunded if the application is withdrawn or refused. The issue of NHS access and sickness insurance for EEA nationals living within the UK, however, is not so clear. While Union citizens who have acquired a right of permanent residence are entitled to access the NHS on the same basis as UK citizens, this is not the case for all Union citizens.

Under EU law, all Union citizens have the right to move and reside freely for periods of greater than three months if they:

  1. Are workers or self-employed persons in the host Member State; or
  2. Have sufficient resources for themselves and family members so as not to become a burden on the social assistance system of the host Member State and have comprehensive sickness insurance cover in the host Member State; or
  3. Are enrolled as students (including vocational training) within the host Member State and have comprehensive sickness insurance cover and assure the national authorities that they have sufficient resources for themselves and family members not to become a burden on the social assistance system of the host Member State during their period of residence; or
  4. Are family members of Union citizens falling within one of the above categories.

As is clear from the above, comprehensive sickness insurance is an essential requirement for the non-economically active Union citizen living within the UK: self-sufficient persons and students must show that they have comprehensive sickness insurance, as must their family members.

In relation to the principle of non-discrimination on grounds of nationality (Article 18 TFEU), there is some debate, and some leeway for arguing that EU citizens ought to be able to access the NHS for free if they are living within the UK, on the same basis as UK citizens.

However, this was not the approach of the Court of Appeal in Ahmad v Secretary of State for the Home Department [2014] EWCA Civ 988, a case in which the AIRE Centre intervened. In this case, Lady Justice Arden gave the lead judgment and found that public healthcare provision in a host Member State such as the NHS could not fall within ‘comprehensive sickness insurance cover’ for the purposes of the Directive, as this would defeat the object of the Directive, in that it would not relieve the host Member State of the burden of paying for medical treatment for EEA migrants.

Guidance issued on the NHS Regulations (in relation to overseas visitors) in 2015 states that:

“The general position for British citizens/EEA/Swiss nationals is that those who are ordinarily resident here must not be charged.”

This guidance is compatible with the Court of Appeal’s decision: for an EEA national to be legally resident within the UK and thus to be eligible not to be charged, they must either be a worker/self-employed, or fall within another category and have comprehensive sickness insurance. However, the last criterion cannot be strictly applied, following the well-known CJEU decision in Baumbast, which found that a refusal to allow Mr Baumbast to exercise his right of residence due to his sickness insurance lacking emergency cover would be a disproportionate interference with the exercise of that right. Despite the Court of Justice decision in Baumbast, most Union citizens who are relying upon self-sufficiency or being students must show sickness insurance: Baumbast would not be of assistance to Union citizens in the UK with no sickness cover whatsoever.

The current UK judicial approach of distinguishing NHS cover from the required comprehensive sickness insurance cover under EU law has not been considered by the Court of Justice of the European Union. Though not going so far as to require a case-by-case calculation in relation to the burden which would be placed upon the host Member State and an individual’s reliance on the NHS, Ahmad does take into account the purpose and objectives behind the Directive, and thus it seems likely that, if a question were referred on this point, the CJEU approach would not differ massively from that of the Court of Appeal.

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For advice and assistance with applying for an EEA Family Permit, EEA Residence Card or EEA Permanent Residence Card, contact our EU law immigration barristers in London.


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