Comprehensive Sickness Insurance for EU Citizens: a welcome ruling

An issue which has been a thorn in the side of many EU nationals in the United Kingdom for over a decade has been definitively addressed in a new ruling by the Court of Justice of the European Union (CJEU).

European Union migrants exercising their rights of free movement by living in another EU member state are required to hold comprehensive sickness insurance if they are not classed as workers (even for a brief period) while living in the host state.

In the UK, workers contributing to national insurance through their taxes unarguably have the right to use NHS services, as well as the right to claim benefits.

However, for those who are students or are self-sufficient (that is, able to support themselves in the UK without working), the question of whether or not they need to hold comprehensive sickness insurance has been less straightforward.

Opposing views on comprehensive sickness insurance requirements

For years, the question of whether or not having access to the National Health Service counted as having comprehensive sickness insurance has been hotly debated, with interested parties coming to diametrically opposite conclusions.

As long ago as 2012, the European Commission made its position perfectly clear, stating: ‘[t]he United Kingdom…does not consider entitlement to treatment by the UK public healthcare scheme (NHS) as sufficient [to satisfy the comprehensive sickness insurance requirements]. This breaches EU law.’

UK courts and tribunals meanwhile noted that the European Commission held this view but repeatedly declined to accept that view as their own, and failed to rule in accordance with the European Commission’s position.

Therefore it was repeatedly held that private healthcare coverage was required of European citizens living self-sufficiently in the UK.

As a result, an unquantifiable number of European Union citizens and their family members have been unfairly – and, it turns out, unlawfully – prejudiced.

Failure to hold comprehensive sickness insurance has, among other things, prevented EU nationals from:

• claiming benefits they might have been entitled to;
• prevented them from obtaining homelessness assistance;
• prevented successful applications for permanent residence;
• prevented people from being granted British citizenship solely on the basis that they had, at some point, been residing unlawfully in the UK if they weren’t covered by a comprehensive sickness insurance policy.

Settling the debate on comprehensive sickness insurance

Given the long-standing dispute around this issue, it is gratifying to finally have a clear ruling from the Court of Justice of the European Union.

The case of VI v HMRC (Case C-247/20) came to the Court of Justice by way of referral from the Northern Irish Social Security Tribunal which posed a number of questions to the Court.

Notably, none of those questions asked whether or not access to the UK’s NHS satisfied the requirement for comprehensive sickness insurance.

That the Court of Justice decided to unambiguously answer that question anyway perhaps shows the importance of the issue, and the desire of the Court to rule on the point once and for all, stating: ‘…once a Union citizen is affiliated to such a public insurance system in the host Member State, he or she has comprehensive sickness insurance…’

That is: an EU citizen who has access to the NHS, has de facto met the comprehensive sickness insurance requirement.

What does this mean in practice for EU citizens?

Those who have already been negatively impacted by the UK’s position on comprehensive sickness insurance, might have a (short) opportunity to raise claims for damages against the UK.

In reality, it’s highly unlikely that any significant number of people will do so – becoming embroiled in years of costly and protracted litigation is not an attractive prospect – and the UK will certainly not be pro-actively awarding damages to all those affected by (what now turns out to be) an historical, wrongful decision on an application for benefits, residency or citizenship.

People who, in the past were denied certain benefits or public funds, might be in a position to claim them now, although the funds will almost certainly not be backdated.

Those who were refused an application for British citizenship may wish to submit a new application now, and rely on the ruling in VI v HMRC that they did not fall foul of the law in the past by not holding private health insurance during a period, or periods, of self-sufficiency or study in the UK.

Of course, successful applications will still rely on the Home Secretary implementing the decision of the Court of Justice of the European Union. Given the UK’s long-standing reluctance to accept that access to the NHS was sufficient to qualify as comprehensive sickness insurance, it seems likely that the Home Secretary may be reluctant to do so.

However, notwithstanding Brexit, the Court of Justice’s decision is binding on the UK in terms of Article 89 of the Withdrawal Agreement so this week’s decision gives a solid legal argument – and a glimmer of hope – to those who might otherwise have lost out on rights they have been entitled to all along.

By Clara Smeaton, Burness Paull LLP, Scotland, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact ukscotland@transatlanticlaw.com

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