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What is the position of EU spouses of British citizens following Brexit?

What is the position of EU spouses of British citizens following Brexit?

The result of the Brexit referendum has thrown a harsh light on long standing UK Government positions on the free movement rights of EU nationals. Nowhere is this more obvious and more awkward than in the case of EU national spouses of British citizens. I have been receiving many queries about this issue and concern has been expressed in Parliament and in the media. 

MEPs and the EU Commission are also thought to be looking into this question and even launching an inquiry into the treatment of EU nationals in the UK. Jean Lambert MEP tabled a question to the Commission late last year. The Commission had started infringement proceedings against the UK back in 2012 but nothing further had been hear about the case. The Commission confirmed in November 2016 that the case is ongoing, although would not say much about what, if anything, was going to happen and when:

These infringement proceedings are ongoing. The Commission is still assessing the case, also in light of the recent case law of the Court of Justice concerning conditions Member States can attach to access by economically non-active EU citizens to welfare benefits in order to protect public finances. The Commission will take a position on the next steps in due course.

I thought it would be helpful to set out the present position in EU law. Of course, the UK could choose to be more generous than EU law requires or, after Brexit occurs, may choose to be far less generous.

Who qualifies for permanent residence in EU law?

In EU law, any EU national has a right of admission to another Member State and can then physically remain in that Member State without breaching any immigration laws. However, only certain EU nationals acquire in EU law what is called a “right of residence”. This is more than the right to be physically present as it also confers the right to be joined by other family members, to claim welfare benefits and, eventually, the right to permanent residence.

The four main ways to acquire a right of residence are:

  1. Work
  2. Self employment
  3. Self sufficiency
  4. Study
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After five years of one or more of these qualifying activities, an EU national automatically acquires the right of permanent residence and can apply for a permanent residence certificate as proof. Some EU national spouses of British citizens have acquired a right of residence and then permanent residence in this way. Many EU national spouses have worked or been self employed for five years and qualified by those routes.

Many, however, have not. They might potentially qualify as being self sufficient but are finding now that they do not. This is for two main reasons:

  1. The Home Office does not make sufficiently clear that household income (e.g. income of spouse or family members) can be taken into account for showing self sufficiency; and
  2. For a person to qualify as self sufficient (or as a student) the person must have comprehensive sickness insurance, and the Home Office takes the view that access to the NHS does not count.

Given the interest in these issues, I thought it might be helpful to explain what EU law says about both and what is wrong with the UK Government approach.

Source of funds for self sufficiency

In EU law, the income of a spouse, partner or family member counts as self sufficiency as long as the EU national concerned does not become a burden on the social assistance scheme. A Member State is not allowed to stipulate a minimum amount of income or savings to qualify as self sufficiency.

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In the case of Commission v Belgium C-408/03 the situation of self sufficient persons was considered in some detail. The Belgian authorities had taken the view that sufficient resources had to be personal sufficient resources and that the support of a Belgian partner was not sufficient.

The Court held that “it is sufficient for the nationals of Member States to ‘have’ the necessary resources, and that provision lays down no requirement whatsoever as to their origin” (para 40) and that the necessary financial resources can be provided by a family member and that the family member could be a citizen of the host Member State (para 42, 51).

This case is binding and it is therefore clear that the support of a British partner or family member does count as self sufficiency. No particular level of support is necessary as long as the person avoids becoming a burden on the social assistance system.

Why, then, are some lawyers and individuals under the impression that the support of a British citizen family member does not count?

The Home Office says that family members of British citizens can only qualify for residence rights if the British citizen has worked or was self-employed in another EEA state before returning to the UK. Many people are, understandably, reading this as meaning that the support of a British citizen family member cannot count towards self sufficiency.

Indeed, I have seen a refusal letter where the Home Office civil servant treated the application as one of a dependent of a British citizen and refused it because the “Surinder Singh” rules requiring the British citizen to have lived and worked elsewhere in the EU were not satisfied.

This is wrong but I can see why people are making this mistake. The true position is not spelled out in Home Office guidance documents and there are passages which suggest that the income of a British national family member cannot be counted towards self sufficiency.

For example, the guidance notes for the form EEA(QP) say as follows:

Proof of your financial resources

One or more of the following:

  • Itemised bank statements covering at least the last three months
  • Building society pass book
  • Evidence of receipt of a pension
  • Evidence of income from rental property
  • Wage slips from lawful employment
  • Evidence of income from lawful self-employment
  • Any other relevant evidence of the financial resources available to you.

The documents must be in your name, or in the name of a person who is financially supporting you. If a relative, friend or other person is financially supporting you, enclose a signed and dated letter from that person confirming that they are supporting you and for how long, together with evidence of their financial resources (as above).

This is not wrong as such if it is read as non-exhaustive, as we lawyers would say, but it fails to provide the critical bit of information required by a large segment of people. It is at best very badly conceived and written. It tends to suggest that the income or asset must be personal and then does not say anything about the income of a British citizen spouse.

The same issue arises in other Home Office policy documents, such as EEA nationals: EUN01.

Home Office civil servants might say “well, it is not for us to spell out every little thing, they can always talk to a lawyer.” Home Office civil servants are not used to dealing with normal members of the public already settled in the UK who have never previously had to deal with complex immigration law questions.

This gap in understanding could easily be cured by a simple review of the Home Office website and guidance and putting out better information. Sadly, reassuring EU nationals and their family members seems to be a very low priority at the Home Office. Instead, the Home Office is more interested in narrowing the ways in which applications can be made, removing rights of appeal and generally making life as hard as possible for EU citizens and their families.

Comprehensive sickness insurance

The other major problem for EU national spouses of British citizens is that a self sufficient person needs comprehensive sickness insurance in order to qualify for a right of residence and thereby eventually a right of permanent residence. I have written about this in detail here: Comprehensive Sickness Insurance: what is it, and who needs it?

The UK Government position is essentially:

  1. Access to the NHS does not count as comprehensive sickness insurance because it is not insurance based.
  2. Whether a private health insurance policy is “comprehensive” will be decided on a case by case basis with little central guidance for applicants or decision makers.
  3. Many EU citizens may benefit from comprehensive sickness insurance by virtue of reciprocal arrangements between the UK and the person’s home Member State but the UK will not reveal any detail of such arrangements and forces every individual to approach his or her own Member State for proof.
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This is simply not good enough.

The EU Commission says that access to the NHS should count as comprehensive sickness insurance and as long ago as 2012 began infringement proceedings against the UK for failing to respect EU law on this and certain other issues. As discussed above, the case is ongoing but we do not know any more than that.

As recently as 22 June 2016 the Home Office confirmed to Matthew Evans, Director of the AIRE Centre, that it has no clear central policy on what does or does not constitute “comprehensive” health insurance. The only policy there is (see European Economic Area nationals qualified persons) instructs Home Office officials thus:

You can accept an EEA national or their family member as having comprehensive sickness insurance 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.

This deliberate vagueness has led to some people who do have private health insurance being refused because their insurance policy does not cover pre-existing health conditions. No policy does, of course. The bar is being set impossibly and unrealistically high.

In one case a couple were refused residence documents by the Home Office for this reason and 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 (see letter to Matthew Evans above).

Finally, it beggars belief that the UK Government is unwilling to assist EU nationals at all with showing that they are covered by reciprocal arrangements between the UK and their home Member State. The UK must hold this information, after all. So why not make it available and at least outline which classes of people are likely to qualify?

What can you do now?

If you do not currently have comprehensive sickness insurance and need it, or you would have previously needed it but did not have it, you can:

  1. Wait and see what happens with the UK’s negotiations to leave the EU. It is highly likely that some arrangement will be made for EEA nationals who happen to be living in the UK at a certain date but do not have a right of residence or permanent residence. We simply do not know. This does not seem at the moment like a very safe way of approaching the issue, and it also risks wasting time that might otherwise be spent building up a right of residence to acquire permanent residence further down the line.
  2. Become a worker or self employed person. Neither requires comprehensive sickness insurance.
  3. Buy comprehensive health insurance now and start building up a right of residence. This could be a very expensive waste of money, though, depending on what arrangements are ultimately made for existing EU residents of the UK.
  4. Get involved with a campaign group like The3Million, contact your MP and MEP, make a complaint to the EU Commission and generally make some noise. 
Colin Yeo
A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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