European Commission warns UK

Free Movement — 

The European Commission has today given the United Kingdom two months to comply with European Union rules on the free movement of EU citizens and their families across the EU or face an EU court case. You can read the press release yourself here.

The four issues highlighted are as follows:

  1. The Free Movement Directive guarantees that non-EU family members of EU citizens who hold a valid residence card issued by one EU country can travel together with EU citizens within the European Union without an entry visa. The UK laws do not grant this important right which lies at the heart of free movement.
  2. The United Kingdom does not allow extended family members of EU citizens to apply to have their residence in the UK considered under EU law when they were lawfully residing in the UK before the arrival to the UK of the EU citizen on whom they are dependent.
  3. Under the Free Movement Directive, EU citizens who settle in another EU country but do not work there may be required to have sufficient resources and sickness insurance. The United Kingdom, however, does not consider entitlement to treatment by the UK public healthcare scheme (NHS) as sufficient. This breaches EU law.
  4. Finally, the United Kingdom does not issue workers from Romania and Bulgaria during the first 12 months with the same residence documents as workers from other EU Member States. While EU law allows the United Kingdom to temporarily keep in place a work-permit scheme for workers from Bulgaria and Romania, those who have a work permit have the same right to reside as other EU workers and must be issued the corresponding residence documents.

All four of these points seem to be more a matter of realising and accessing rights than any substantive change in UK policy or practice. Basically, the UK has arguably thrown up additional procedural barriers to rights imparted by European law which the UK accepts are indeed imparted by European law. I once heard that the British are the third largest users of EU free movement rights to go and live in other EU states. I imagine (or at least hope) that the UK is pretty militant about the rights of UK citizens living in other EU countries, so it seems only fair that we properly respect the rights of EU citizens living here.

The first issue is that the UK requires a non-EU family member of an EU citizen to satisfy the UK’s domestic immigration rules in order to obtain a visa to enable travel to the UK. In fact the rules that apply are the more generous EU free movement rules. Such a person, usually referred to by lawyers as a ‘third country national’ (not being from the UK or an EU state) who does not meet the UK’s domestic rules but does meet EU free movement rules has a right to enter the UK but the UK’s implementation of the Directive makes it all but impossible to get on a plane to do so. This issue was the subject of judicial comment in the case of CO (EEA Regulations: family permit) Nigeria [2007] UKAIT 00070. The change demanded by the Commission would not affect anyone’s existing rights but it would affect whether they are able realistically to make use of those rights.

I’m actually not sure about the second issue. It may be to do with the difference in wording between Article 3(2) of the Citizens Directive and paragraph 8 of the UK’s domestic implementing regulations. The Commission may be making the point that Article 3(2) does not impose an explicit requirement of recent dependency abroad but that the UK’s regulations do. I haven’t actually managed to read it yet but the Opinion in the immigration tribunal’s reference to the European Court on this issue is now available.

The third issue originates in the differences between the way that state health care is provided in the UK and elsewhere in Europe. Everywhere else has a health insurance model, where the treatment is often paid for at the point of delivery but then reclaimed through the state’s health insurance scheme. The UK’s model of free-at-the-point-of-delivery through the National Health Service is unique. Unsurprisingly, therefore, European law, derived from laws that pre-existed UK membership, often requires a person to have health insurance in order to qualify for free movement rights. That makes little sense in the context of the UK, where we impose no such requirement on our own citizens. It looks like the Commission is therefore putting the case that an additional requirement to obtain private health insurance over and above entitlement to NHS health care (to which EU citizens are entitled anyway, just as we can reclaim expenses for treatment received in other EU states) is unlawful. This does not substantially change entitlement to claim NHS health care, though, as EU citizens are generally already entitled.

The fourth issue is only really one of documentation but the Commission’s point is that the rights are the same and therefore the documentation should be the same, presumably in case those with the same rights are treated differently by other parties because of differences in their documentation.

In some ways it looks like the UK is managing to make a mountain out of a molehill by failing to amend laws it knows are out of step with EU free movement rights. The Commission was bound to do something about it eventually.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

13 responses to European Commission warns UK

  1. In relation to the second issue, I believe the problem is that Regulation 8 requires other family members to reside in a country other than the United Kingdom before claiming any rights under EU law. So those OFMs who have lawfully resided in the UK under national law cannot switch to EU residence after arrival of the EU citizen on whom they were dependent.

  2. The first point relates to the second sentence of §5(2) directive:
    “2. Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement.”

    Example: Russian spouse of Danish citizen resident in France. Therefore the Russian spouse has a French residence card under the directive. Consequence: if they travel together, the UK must accept the French residence card, no EEA FP is required. (If they lived in Denmark with the Russian having LTR under Danish rules, that provision of the directive would not apply, so EEA FP for the UK.)

    It only needs a simple change to Reg 111 (right of admission). Ireland did it, if I remember correctly, in 2011.

    But some Schengen states violate this as regards UK and Irish issued residence cards, some or all of the time. Germany for eg. has not codified it either, though it usually is observed in practice.

    Point 2, well I’m not a lawyer, it seems to me to be an area which if subject to an ECJ decision could go either way. Residence for extended family members (or “other family members”) is there to facilitate freedom of movement for EU nationals as well as to prevent them from being discouraged from free movement, and not to legalise extended family members because the EU national turns up. That said, if they qualify under the rules, logically them being in the UK before the EU national shouldn’t matter.

    Point 3 is something that was bound to come up eventually/is bound to go to the ECJ one day if no change is made.

    In some EU states all residents must pay for comprehensive sickness insurance based on income and/or wealth and/or minimum contributions. In the UK mere presence for over three months (extended right of residence) does not itself oblige that.

    A blanket requirement to accept the NHS is not fully consistent with the EU’s own guidance to member states. However it does seem a valid issue when it imposes a requirement on EU citizens not imposed on British citizens.

    Point 4, well the work restrictions for A2 nationals are allowed, as they will be when Croatia joins. What document is issued isn’t so important. But yes it should be done correctly.

  3. “Enforcement” is up big time and the UKBA is rampaging. Just reading your Lithuania case :-). I’ve my own “poor” Lithuanian chap in a detention centre (he entered illegally in breach of his deportation order). He has a Lithuanian partner and child who exercise a right of FM here. I can’t see how they can hold him any longer. I’ve faxed the UKBA his partner’s passport details and loads of other evidence on the basis of which he should have been released by now. (But he hasn’t been!!!)Which is why I am leaving this comment … He has an in country right of appeal under regulation 27(3) but the officer I spoke to after the fax had not heard of this! I wonder how many British exercisers of FM or Article 8 rights are detained in Lithuania today? Prior to his “illegal” re-entry he was tried for possessing a shot gun which was never found but he was convicted for 4.5 years in the Crown Court! He did the time and is a family man now. No removal directions though! BTW They never found the shot gun. Just two cartridges and he was nevertheless convicted.

  4. The first issue is that the UK requires a non-EU family member of an EU citizen to satisfy the UK’s domestic immigration rules in order to obtain a visa to enable travel to the UK.

    This should be part of the complaint, but it is not. The first paragraph of the complaint is solely to do with the fact that an Iraqi citizen who is married to a Dane and who holds a German issued Residence Card can not simply get on the airplane to travel to the UK. The UK insists that they get an EEA Family Permit visa. The UK has carefully written the law to only recognize UK-issued Residence Cards.

  5. What exactly does the requirement to meet the requirements in the immigration rules mean and why is that contrary to EU law? An example would be lovely! Thanks :-)

  6. The immigration rules require a certain income before a spouse visa will be issued.

    There is no requirement for the EU citizen or the non-EU spouse to have any specific income. The EU family member visa is issued solely on the basis of the family relationship.

    Unfortunately UKBA is trying to apply immigration rules to EU citizens and their family members. It is shameful and it gets consistently overturned.

  7. If the family member has an EHIC card issued in another EU country, UKBA will accept this as evidence of appropriate healthcare insurance.

  8. Two years ago my wife and I fought in the AIT precisely over point 3. I am an EU citizen and was a student then, entitled to NHS care. My wife is a non EEA-citizen. UKBA denied her a Residence Card because I didn’t have any extra insurance. This was upheld by an IJ in the first instance, and then the Home Office dropped the case after I successfully applied for reconsideration on the grounds that the requirement for extensive additional insurance is disproportionate.

    Interestingly, the reconsideration order (signed by HH Storey) plainly says that the provision for sickness insurance *is* supposed to prevent relying on the NHS by the migrant (it is the scope of the requirement that he found contentious). So there seems to be a direct disagreement between how the EU and the courts see the relevant law. I can share the order if it’s of interest, but only with FM or other practitioners.

    Anyway, we “won”, and promptly left the UK when I got a job somewhere else.

    re: RGB. I doubt UKBA would have accepted an EHIC card, though things might have changed. I know the IJ didn’t care about the health-care reciprocity between EU countries — we argued this point at the hearing.

    • @vHF: UKBA accept the EHIC card only if it has been issued outside the UK. This is for Bulgarian/Romanian applications (usually from students) for a BR1.

  9. I can’t believe that this Lithuanian bloke is in detention costing £130 per day when Regulation 27 allows him admission to the UK and he has an in country right of appeal. He did 4.5 years prior to meeting his partner and prior to Lithuania’s entry into the UK. The UKBA wants him to pay bail money! I can’t see why he should do so. I’ve made some very lengthy representations to them but they just don’t care/answer. I suppose it’s a good idea to let them digest my fax and call them to give them a shouting tomorrow morning at 9.00AM. It’s anathema for his family. Can the UKBA constructively remove two EU citizens because a member of their family did some time 8 years ago? They think that they have a right to exclude him forever … He bears all the expenses for his very cute son. But to the Agency he is just some “European criminal”. He’s served hard time for his crimes … If it’s not “foreign criminals” it’s “European criminals” and the frequently cited “manacles of Article 8″. What a waste of public money and time. I feel sick!

  10. Finally let him go. Didn’t need to call. It’s quite a free country: they still release people (“European criminals”) on faxes. Hurrah for UK!

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