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European Commission warns UK

By Rock Cohen
By Rock Cohen

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.

Free Movement
Free Movement 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.

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