If you are an EEA/EU citizen or their family member and wish to qualify for an EU law right of residence, then eventually a right of permanent residence, you have to meet certain requirements. For some people — chiefly those not working or self-employed — one of those requirements is to hold Comprehensive Sickness Insurance. Here we look at this requirement, ask whether it is really important in light of Brexit (spoiler: it might be to some people) and then examine the requirements in detail.

Confusingly, EEA citizens and their family members are allowed to use the NHS in the UK, but according to the Home Office the NHS does not count as Comprehensive Sickness Insurance. In the one case that has been decided in the higher courts on this point, the Home Office won its argument. For an EEA citizen or family member who needs Comprehensive Sickness Insurance, therefore, they need to show something more than merely that they can use the NHS if or when they need it.

The European Commission considers this a breach of EU law. It started infringement proceedings against the UK back in 2012 but nothing much seems to have happened with the case. The Commission confirmed in September 2017 that the case is ongoing, although would not say much about what, if anything, was going to happen and when. In light of Brexit, it now seems unlikely that the investigation will go anywhere.

Once the UK leaves the EU and its system of laws, the EU law rights of residence or permanent residence will no longer exist in the UK. The Comprehensive Sickness Insurance requirement may therefore not matter much to some people in the long run. The British government and European Commission have reached a preliminary agreement on replacement rights in UK law, known as “temporary status” and “settled status”. The Home Office says that Comprehensive Sickness Insurance will not be required in order to obtain these new types of UK status.

This means that those people who under EU law should at the moment have Comprehensive Sickness Insurance in order to have an EU law right of residence will still be eligible for settled status in the UK.

Who needs Comprehensive Sickness Insurance?

Students and self-sufficient people

EU law gives a right of entry to the UK to any EEA citizen. However, only certain EEA citizens qualify for a right of residence, which brings with it the right to be accompanied by family members, the right to claim certain benefits, protection from removal from the UK and the right to acquire permanent residence after five years of a qualifying activity.

The main categories of EEA citizen who qualify for a right of residence are:

• Workers
• Self-employed people
• Self-sufficient people with Comprehensive Sickness Insurance
• Students with Comprehensive Sickness Insurance

As you can see, two of these categories require the EU citizen to hold Comprehensive Sickness Insurance.

The UK began enforcing the requirement to hold Comprehensive Sickness Insurance from 20 June 2011. Limited transitional arrangements were made for students who had been issued with a registration certificate as a student before that date. You can read about those changes in European Operational Policy Notice 7/2011.

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The family members of self sufficient persons and students also need Comprehensive Sickness Insurance to qualify for their own right of residence. See further below.

There are LOTS of self-sufficient EEA nationals currently living in the UK. For example, they may be married to a British citizen and not currently be working or self employed. Unless they have already acquired permanent residence through five historic continuous years of work or self employment (and be able to provide it), they will need to show they have Comprehensive Sickness Insurance to show that they have a current right of residence in the UK.

Family members

The UK’s implementation of EU law has always required the family members of self sufficient EEA citizens to have Comprehensive Sickness Insurance as well as the EEA citizen in order for them to have a right of residence. From 6 April 2015 the same rule has also been applied to the family members of EEA students.

For further information on the changes, see this guidance note.

Comprehensive Sickness Insurance and Brexit

For those applying for “settled status” – available to EU citizens living in the UK – the government has given assurances that they will not need to show that they have Comprehensive Sickness Insurance. Brandon Lewis, then the immigration minister, said on 12 December that “we are removing the need to demonstrate Comprehensive Sickness Insurance… to secure settled status”.

The Home Office said on 26 January 2018 that:

we will not require students and self-sufficient people living here to prove that they have held comprehensive sickness insurance when they apply for settled status in the UK. Students and self-sufficient people living here can still be granted settled status even if they have never held this.

There are two issues here. One is that, as the European Commission emphasises, this is not a legal requirement of its deal with the UK. It is a unilateral offer and the Home Office might change its mind in future. Another is whether this waiver also covers people who have not lived here for five years, and are therefore applying for “temporary” rather than “settled” status.

Needing to show Comprehensive Sickness Insurance despite Brexit

There are still some people who may find it important to have Comprehensive Sickness Insurance in the short term, before Brexit:

1. If a person wants to show he or she has permanent residence now and has been self sufficient or a student, he or she may need to prove past possession of Comprehensive Sickness Insurance.
2. If a person wants to naturalise as British now he or she has to possess a permanent residence document to make the application, and getting the permanent residence document may for the self sufficient and students require showing past possession of Comprehensive Sickness Insurance.
3. If a person is facing removal from the UK and needs to show a right or residence or permanent residence now, that may for the self sufficient and students require proof of holding Comprehensive Sickness Insurance.
4. If a person is attempting to claim certain welfare benefits now, that might also for the self sufficient and students require proof of holding Comprehensive Sickness Insurance.

What counts as Comprehensive Sickness Insurance?

This is not an easy question to answer. The rest of the EU uses a system of health insurance to provide the public with health care. In the UK, uniquely, we have the National Health Service instead, which is not insurance based but instead simply provides free health care at the point of need. The EU rules on the need for Comprehensive Sickness Insurance for self-sufficient people and students were not really written with the UK’s unusual situation in mind.

The purpose of the rules is that self-sufficient persons and students should not become unreasonable burdens on state resources – or, as the Supreme Court put it in the recent case of Mirga v Secretary of State for Work and Pensions [2016] UKSC 1, “economically inactive Union citizens using the host member state’s welfare system to fund their means of subsistence”.

Access to the NHS is not enough

An EEA national living in the UK is allowed to use the UK’s National Health Service. The Home Office has long argued that this does not count for the purposes of EU law as having Comprehensive Sickness Insurance, though.

The Home Office view was upheld by the Court of Appeal in the case of Ahmad v Secretary of State for the Home Department [2014] EWCA Civ 988:

I would dismiss this appeal. If an EEA national enters the UK and is not involved in an economically active activity, for example because she is a student, her residence and that of her family members will not be lawful unless she has CSIC [Comprehensive Sickness Insurance Cover] while she is a student in the five years following her arrival. Accordingly her family members will not be able to qualify for permanent residency in the UK.

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.

So we know from Ahmad that access to the NHS does not count. What might qualify as Comprehensive Sickness Insurance, then?

There are three potential ways to meet the requirement.

1. Buy comprehensive private health insurance

One way forward is to purchase private health insurance from a private company. This is relatively cheap if you are young and healthy. It may be prohibitively expensive or even impossible if you are older or already ill.

This will need to be “comprehensive”. Both lawyers and non-lawyers have found the level at which sickness insurance becomes “comprehensive” to be something of a mystery. The government says it means “full health insurance”, which raises the question of what “full” is to mean. So this is of little help.

The Guide to Supporting Documents on the EEA (QP) form is a helpful place to start because it sets out the Home Office view (which is not necessarily the right view always). It suggests that the insurance should

cover you (and your family members if applicable) for the majority of risks while you are in the UK.

This suggests that there may be gaps in cover allowed; after all, it does not say “all risks”.

The closest there is to a formal Home Office policy is in the formal guidance document for Home Office staff European Economic Area nationals: qualified persons. This instructs officials:

You can accept an EEA national or their family member as having CSI if they hold any form of insurance that will cover the costs of the majority of medical treatment they may receive in the UK.

You must take a proportionate approach when you consider if an insurance policy is comprehensive. For example, a policy may contain certain exemptions but if the policy covers the applicant for medical treatment in the majority of circumstances you can accept it.

The definition of CSI does not include:

• cash back health schemes, such as:
  • dental
  • optical
  • prescription charges
• travel insurance policies
• access to the UK’s NHS

This does not help us very much: decisions will be made on a case by case basis with no further guidance from the Home Office. This can lead to very poor results for individuals.

In one case a couple were refused residence documents by the Home Office because their health insurance policy did not cover existing health conditions. No policy does, of course. The couple lost their appeal to the First-tier Tribunal on the basis that they might have a pre-existing health condition, even though there was no evidence that they actually did (Tzur IA/10402/2015).

The decision was later overturned in the Upper Tribunal and it transpired later that Home Office policy is actually that pre-existing health conditions do not need to be covered.

It will be a question of fact whether this bar in an individual case has been met. For instance, in the case of Baumbast a lack of cover for emergency treatment given in the UK meant that his health insurance was not comprehensive. Note however that because Mr Baumbast and his family had never relied on state resources, the slight shortfall in his health insurance could not undermine his right to reside, as this would be disproportionate in the context of Mr Baumbast’s and his family’s individual circumstances.

2. Use a European Health Insurance Card

The EEA(QP) form states that you can use a European Health Insurance Card (EHIC) as evidence of Comprehensive Sickness Insurance, but only if you make a declaration that you do not intend to stay in the UK permanently.

This may be helpful for some, but many would rather the flexibility to stay permanently if opportunities in the UK come their way. The declaration is not legally binding in any way, though, and it is questionable whether the Home Office view on this is correct. There are no decided cases about the issue so it is not possible to say for sure in what circumstances a EHIC will count.

You can find more information about applying for a EHIC here.

If applying for permanent residence documents, a EHIC issued by another member state (not the UK) can be used at that stage. Home Office policy document European Economic Area nationals: qualified persons instructs officials:

Applications for a document certifying permanent residence or a permanent residence card – EHIC or E111 is provided

You do not need a statement of intent with these applications as at the permanent residence stage you are deciding if the applicant has already acquired a right of permanent residence in the UK.

Therefore the applicant’s intentions for the future are irrelevant. In these circumstances, applicants only need to provide evidence to show they had an EHIC (or an E111) for the whole of their five years’ continuous residence.

If the applicant submits an EHIC which does not cover the whole of the period relied upon, or does not feature a valid from date, they must also submit evidence from the issuing authority confirming that they held a valid EHIC card for the period relied upon.

So even though a EHIC cannot be used to obtain a residence document without residence being temporary, once a person applies for permanent residence continuous EHIC cover will be adequate and intentions are no longer relevant.

3. Prove you are protected by reciprocal arrangements with your home country

The EHIC exists because of multilateral and reciprocal agreements between EU countries which mean that the cost of medical care in the host state can be recovered from the state of origin so long as that person is entitled to healthcare in that state.

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In Ahmad v Secretary of State for the Home Department [2014] EWCA Civ 988, the leading Court of Appeal case on the issue, it was common ground that if Mrs Ahmad could prove that there were reciprocal arrangements between the UK and Denmark enabling the UK to reclaim from Denmark the costs of providing Mrs Ahmad with care in the UK then she would be considered to have Comprehensive Sickness Insurance. Rather unfortunately, though, there was no evidence put to the court that this was so in her case:

The appellant seeks to rely on the fact (as he contends) that Mrs Ahmad would have a right to obtain healthcare here and the Secretary of State could recover the costs in Denmark. It is common ground that if there were reciprocal arrangements with the EEA national’s own state that would be sufficient to constitute comprehensive insurance cover.

However, there is no evidence that Mrs Ahmad, who has been in the UK since 2006 and who is therefore no longer habitually resident in Denmark, is still entitled to healthcare in Denmark.

The court also held that the Home Office was under no obligation to find out what the position was; that was up to Mrs Ahmad as it was her case to prove.

The way to prove that you have Comprehensive Sickness Insurance that covers you in the UK without a EHIC is to use forms S1, S2 or S3. These are specifically mentioned by the Home Office in the guidance notes.

For more information about the forms, click here. In short:

• The S1 form replaced the E109 and E121 forms. The S1 form is a certificate of entitlement to health care in another EEA country for a limited duration and may only be used in limited circumstances; for example, by state pensioners or dependents of an insured person working in another member state.
• The S2 form (previously E112) covers the actual cost of treatment; for example, for insured persons who are referred for specific treatment in another EEA country or Switzerland.
• The S3 form will cover the cost of treatment; for example, for retired frontier workers continuing treatment in the member state they previously worked.

It is thought that the forms can be obtained retrospectively from the health provider in your country of nationality, i.e. that you can apply now for a form that provides cover for previous residence in the UK. Once obtained the form needs to be translated into English and sent to the following address:

Overseas Healthcare Team

Department for Work & Pensions

Durham House

Washington

Tyne and Wear

NE38 7SF

This information is accurate to the best of my knowledge but it is also untested, in that I have not myself seen a successful application for a student or self employed person based on this method. If you have more information, please get in touch with me or leave a comment.

The EU Rights Clinic says in a very helpful recent post that “another way to prove comprehensive sickness insurance includes past coverage under your home country’s social security system”. This is a method that can be used in particular by citizens of Bulgaria, Romania and the Netherlands if they were issued certain documents giving them the right to receive healthcare in the UK at the expense of their home country. The clinic has published letters about the legal effect of such documents that can be included in an application for permanent residence.

What can you do now?

If you do not already have Comprehensive Sickness Insurance, there seems little point in getting it now if what you want is permanent residence under EU law. By the time you build up five years of residence with Comprehensive Sickness Insurance cover, the UK is set to have left the EU and it will no longer be possible to get permanent residence.

Instead, most people who think Comprehensive Sickness Insurance is an issue for them would be better off waiting and applying for “settled status”. The Home Office says that it will not enforce the requirement for Comprehensive Sickness Insurance for those applications.

On the other hand, it is less clear about whether the requirement is waived for people applying to stay while they build up the five years necessary to qualify for settled status. You may also be concerned that the Home Office will renege on its promise altogether, which would be allowed under the terms of the deal struck with the EU.

The worst case scenario can be guarded against by:

• Having Comprehensive Sickness Insurance at the point when you apply for settled or temporary status. You can achieve that by purchasing comprehensive private insurance.
• Having a right of residence that does not require Comprehensive Sickness Insurance at the point when you apply for settled or temporary status. You can achieve that by becoming a worker or self-employed.

Neither are particularly easy options, obviously. It would be far preferable for EU law to be properly respected by the UK — for access to the NHS to be treated as Comprehensive Sickness Insurance — and for full free movement rights of existing EU residents to be preserved along with continued access to the Court of Justice of the European Union when Brexit occurs.

This article was first published in early 2016. It has been revised and updated so that it is correct at the new date of publication. Paul Erdunast and CJ McKinney contributed.