“EU citizens will not be removed from the UK or refused entry solely because they do not have comprehensive sickness insurance,” said a spokesman.
Very welcome news but it is difficult to understand the Home Office’s legal position on all this. They are categorically NOT saying that they will recognise a right of permanent residence for a self sufficient person or student who did not have comprehensive sickness insurance, only that they will not be refused entry or removed.
It is not written down in any of the myriad official policies of which I am aware; it is at the moment just a statement to a journalist.
Laws are supposed to be universal and applied equally to all. So why is this suddenly a “technical” requirement which can be ignored for some EU citizens for some purposes but not for others?
The Home Office undoubtedly says it has a power to refuse entry to or remove an EU citizen with no “right to reside” under Directive 2004/38/EC. See paragraph 23(6)(a) of the Immigration (European Economic Area) Regulations 2016. In EU law it is very highly questionable that there is such a power because Articles 20 and 21 of the Treaty on the Functioning of the European Union give a right to all EU citizens to move between and reside in other Member States.
The only explanation I can think of is that the Home Office is pretending it can remove EU citizens by pretending that Articles 20 and 21 TFEU have no legal effect independently of Directive 2004/38/EC. The reason for the Home Office pretence is so that it can quietly remove a handful of EU citizen rough sleepers. I would be interested to know the ethnic mix of those targeted by the Home Office.
The UK Government has been increasingly hostile to free movement laws over the last few years. As part of that hostility, which in part lost the referendum, the Home Office purports to have taken on an incredibly broad and almost certainly unlawful power and is being highly selective — discriminatory is the other word to use here — about who the power is used on.
More detail in my earlier full legal briefing.