Comprehensive Sickness Insurance for EEA Residence Applications & Brexit

If you are an EEA national living in the UK you may be considering applying for a Residence Permit in view of the uncertainty of Brexit. One of the requirements that you must meet in order to qualify for a residence card is that you hold a valid certificate of ‘Comprehensive Sickness Insurance’ and that you have had this for at least the past 5 years of your residence in the UK. The Home Office is increasingly rejecting applications by EEA nationals who fail to prove that they have held Comprehensive Sickness Insurance. The law surrounding this is increasingly complicated. In this article we try to explain as clearly as possible, what the requirements are and where the complications develop.

Comprehensive Sickness Insurance: what is it, and who needs it?

Page contents

  • Who needs comprehensive sickness insurance?
  • Family members of EEA citizens who need comprehensive sickness insurance
  • What counts as comprehensive sickness insurance?
    • Access to the NHS is not enough
    • 1. Buy comprehensive private health insurance
    • 2. Use a European Health Insurance Card
    • 3. Prove you are protected by reciprocal arrangements with your home EEA country
  • What can you do now?

If you are an EEA/EU citizen or their family member and you would wish to qualify for a right of residence then eventually a right of permanent residence you have to meet certain requirements. Following the Brexit vote to leave the EU, it is more important than ever to make sure that you do currently meet the requirements. The Government has been very vague on what the rights and entitlements of EEA nationals already living in the UK will be after Brexit. Given the uncertainties it is understandable that those EEA nationals living in Britain will want to apply for their Residence Permits sooner rather than later.

It gets even more confusing that 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.

It may very well be that the approach of the Home Office is an infringement of the EEA Regulations. That issue is currently before the European Court of Justice. But until a decision on that case is reached we have to manage the minefield that is the current Home Office approach to the issue of Comprehensive Sickness Insurance.

Who needs comprehensive sickness insurance?

EU law gives a right of entry to the UK to any EEA citizen. However, only certain EEA citizens and their immediate family qualify for a right of residence. Included in this is the right to acquire permanent residence after five years of a qualifying activity.

The main categories where EEA citizens can qualify for a right of residence are:

  • Workers
  • Self employed persons
  • Self sufficient persons with comprehensive sickness insurance
  • Students with comprehensive sickness insurance

Two of these categories require the EU citizen to hold Comprehensive Sickness Insurance.

Traditionally this requirement has always existed, but until recently decisions to refuse EEA applications for lack of comprehensive sickness insurance were unheard of. That was until Brexit reared it’s head. Now refusals of applications on this ground are worryingly commonplace. The UK effectively changed its approach and started enforcing the requirement to hold Comprehensive Sickness Insurance as of 20 June 2011.

The family members of self sufficient persons and students will also need comprehensive sickness insurance to qualify for their own right of residence.

The UK’s implementation of EU law has always required the family members of self sufficient EEA citizens to possess comprehensive sickness insurance as well as the EEA citizen in order for them to have a right of residence. However; from 6 April 2015 the same rule has been applied to the family members of EEA students. This has caused confusion amongst applicants.

What counts as comprehensive sickness insurance?

This is a surprisingly complicated question to answer. Most of the EU States use a system of health insurance to provide the public with health care. In the UK, uniquely, we have the National Health Service, 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 persons and students did not take account of the the UK’s unusual NHS situation.

The purpose of the rules was that self-sufficient persons and students should not become unreasonable burdens on state resources. In the words of the Supreme Court in the recent case of Mirga v SSWP, “economically inactive Union citizens using the host member state’s welfare system to fund their means of subsistence”.

However access to the NHS is not enough on it’s own

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

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

70. 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.

71. 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. We must therefore consider what qualifies as Comprehensive Sickness Insurance, then? There are three potential ways to meet the requirement.

1. Purchase 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. But it could be prohibitively expensive or even impossible if you are older or already suffering from a serious illness.

Such a policy of insurance will need to be “comprehensive”. The level at which sickness insurance becomes “comprehensive” can be something of a mystery. The Government says it means “full health insurance”, which raises the question of what does “full” mean.

The Guide to Supporting Documents on the EEA (QP) form is a helpful place to start because it sets out the Home Office view. 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”.

But clearly this does not say that “all risks” must be covered, so again we appear to be lacking clarity here.

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 considering such applications as follows:

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.

Again the so called policy document leaves as many questions unanswered as it pretends to answer. It almost leaves the decision open to be made on a case by case basis by the officer dealing with the case.

We have heard of a case where a couple were refused residence documents by the Home Office because their health insurance policy did not cover existing health conditions. However the reality of that no policy does cover existing conditions. 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. So again we see that the confusion continues unabated with even various Home Office departments applying the so called policy differently.

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.

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 thus:

 

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

 The leading Court of Appeal case on this topic is that of Ahmad v Secretary of State for the Home Department [2014] EWCA Civ 988. here it was stated 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. Sadly, though for Mrs Ahmad, there was no evidence put to the court that this was so in her case.

The court also held that the Home Office was under no obligation to find out what the position was and that it was entirely up to Mrs Ahmad to prove her own case! Very unfair you may think and perhaps rightly too.

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.

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 regarding Brexit
  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 expensive
  4. Get involved with a campaign group like The3Million, contact your MP and MEP, make a complaint to the EU Commission
  5. Contact us if you require professional and up to date advice from a solicitor. You can book an appointment by calling us on 020 8401 7352 or email us at info@solicitorsfirm.com

Entry Clearance and Visa refusals

Visit visa refusals – appeal or judicial review?

Page contents
  • Re-apply
  • Right of appeal
    • Case of Mostafa
    • Home Office guidance
  • The powerful alternative: applying for judicial review
  • Comparison of Options?

Have you recently been refused a UK visa or refused entry to the UK? If so you will now be facing a difficult legal dilemma. What do you do next? The options are all the more difficult to swallow since the removal of full rights of appeal for family visit visas as well as many other categories of visa.

Should you give up, re-apply, attempt a human rights appeal or should you explore an application for judicial review? Often it can feel hopeless faced with a refusal of a visa for what seems like no sensible reason. It is an unfortunate reality of the process that many applications for visas are refused on frivolous and unfounded grounds, with the embassy knowing that the majority of applicants cannot or will not appeal these decisions.

Depending on your particular circumstances there are a number of possible solutions. Each has it’s own criteria but once we know more about your circumstances we can advise you which of these options is right for you. The recent Immigration Appeals Tribunal case of Mostafa and the Home Office’s new guidance on human rights in visitor visa appeals has moved the goalposts further.

As of July 2013 it is only possible to appeal to the immigration tribunal against refusal of a visit visa where the grounds of appeal are on human rights grounds. Whether or not the visit engages human rights considerations therefore determines whether there is a right of appeal.

immigration-solicitors

The following are a summary of the options available.

Re-apply

The simplest way to deal with a visa refusal is to re-apply, submitting a new application form with new evidence and a new fee. But is it likely to work or is it a waste of time and money?

If the application was refused because insufficient evidence was submitted, for example bank statements or similar, then this can be corrected. We often review failed applications and advise and assist our clients on preparing and submitted fresh strong applications supported by better evidence and also strong and compelling representations based on the law from us.

However there will always be cases where making a fresh application is unlikely to have any prospects of success. These situations are too numerous to list here but the following are a few examples:

  • where it is alleged that deception was used but there is a simple and convincing explanation
  • where the applicant has a negative immigration history
  • Where the evidence relied on was rejected as being from an inadequate or unverifiable source.
  • Where the reason stated by the visa officer is that the applicant is not a genuine visitor or does not have an intention to return.
  • where the reason for refusal states that the Entry Clearance Office is not satisfied that the applicant will return to their country at the end of the visit
It is a sad reality that some visa consideration offices appear to use these reasons all too often. It is no secret that the quality of decisions in Islamabad and Abu Dhabi and Istanbul are very poor, for example, whereas New York, Toronto and Sydney are far better.

Appealing on Human Rights Grounds

Whether you can appeal on human rights grounds depends on many factors and we will advise on these when we have assessed your reasons for refusal letter and personal circumstances. However; even if an appeal can be brought, there are other factors to consider.

Immigration appeals now (as at September 2017) are taking anything between 12 to 18 months to be listed for a hearing before a judge.

Also the problem is that a person may attempt to appeal on human rights grounds and a year later and after having paid appeal fees and legal costs, a judge may decide the visit does not really raise human rights grounds and therefore there was no right of appeal in the first place. A lot of time, energy and money will have been wasted bringing the appeal.

Case of Mostafa

In the case of Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC) the Upper Tribunal considered this question of when human rights might be engaged in a visit visa case. The tribunal held that where a couple are married human rights are certainly engaged but expressed some scepticism whether human rights might be engaged in other, wider circumstances. Only family life relationships were considered, by the tribunal, though, not private life, and the tribunal also omitted to consider whether a different standard for engagement of human rights was relevant for a temporary visit as opposed to a settlement application.

Home Office guidance

The Home Office have published guidance for immigration officials on when human rights might be engaged in visit visa cases: Considering human rights claims in visit applications.

The guidance asks four questions:

  1. Does the application say that it is a human rights claim?
  2. Does the application amount to an implied human rights claim if it does not say that it is a human rights claim?
  3. Are the matters raised capable of engaging human rights?
  4. Does the human rights claim have any prospects of success?

The Home Office view is that refusal of visit visas will not generally raise human rights issues. It is only where the visit is between a spouse or other life partner or a parent and a minor child that the Home Office considers human rights might be engaged, and even then if visits can be conducted in another country then human rights are supposedly not engaged.

This is an excessively narrow view of human rights and it is not consistent with the law. You should not necessarily accept the Home Office interpretation on this topic. After all, we have challenged the Home Office thousands of times in court and by way of Judicial Reviews and the public would be surprised how often the courts rule against the Home Office and in favour of our clients.

Once we know more about your specific circumstances and refusal decision we can advise you whether your case fits as a human rights appeal.

The powerful alternative : applying for judicial review

Where there is no adequate alternative remedy, it is possible as a matter of last resort to make an application for judicial review of a decision. Where a reasons for refusal letter cannot be challenged on human rights grounds, an application for judicial review is a powerful potential remedy.

Judicial Review is a very complex and intricate area of law. It is far too detailed to go into here. But essentially it is based on ‘reasonableness’. An application for judicial review is made to the High Court and you are in effect asking a High Court Judge to decide whether the decision to refuse your visa by the Home Office was (or was not) reasonable?

One of the great wonders of the English legal system is that anybody can challenge any Government decision, by way of judicial review.

Once we gather more information about your circumstances we can advise you whether you have grounds for a judicial review application and if so, we can argue your case for you. However bear in mind that any judicial review application must be made within 90 days of the date of the original decision to refuse. It is therefore vital that you consult us as soon as possible after you receive your negative visa decision.

A comparison of the options in practice?

The following is a very simplified comparison of the difference between an appeal based on human rights and an application for judicial review. Both have their advantages and disadvantages:

Appeal Positives: Relatively cheap, almost no risk of having to pay costs of other side, can sometimes submit new evidence, the judge can make factual findings and the Immigration Judge will make their own decision on the case.

Negatives: Huge delays in waiting for appeals to be heard, risk that the Tribunal will decide that it was not a human rights appeal, risk that the delays will mean that time period for bringing a judicial review is missed

Judicial review Positives: Relatively more expensive than an appeal , risk of having to pay some of the costs of other side as well as your own legal costs if you lose, (can recover own costs if succeed though), there is always a chance that the Home Office may give in at an early stage.

Negatives: no new evidence can be submitted, judge restricted to reviewing lawfulness of decision on ‘reasonableness‘ and certain error of law grounds, judge will not make a decision if you succeed but rather send the matter back to the Home Office to decide again (although in practice this means that the Home Office will grant the application), application must be made within 90 days of refusal decision

To discuss your case with a specialist immigration solicitor or to book an appointment call 020 8401 7352 or email us at info@solicitorsfirm.com 

Divorce fees

We offer several packages to help you meet the costs of your divorce

a. The free 15 minute consultation. This can be on the phone or face to face. It’s a no obligation opportunity to discuss your case and questions with a professional matrimonial solicitor.

b. The full consultation. This is charged at £200 plus VAT and if afterwards you choose to instruct us we will deduct this fee from the costs of conducting your work (options c and d below)

c. The fixed fee divorce. These start at £750 plus VAT for the most straightforward of uncontested divorces. Added to this will be court fees

d. The hourly rate

 

To make an appointment Call us today on 020 8401 7352 to book an appointment or email us your query.

Divorce Procedure in England & Wales

The divorce procedure is usually a purely administrative one, as long as the spouse being divorced does not defend it.

In most cases, the procedure is completed in four to six months.

A divorce is started by filing a divorce petition at court that sets out the details of your marriage and your children and the reason that you want a divorce.

The divorce petition is in a standard form, with space for you to incorporate your own personal circumstances.

There are also other documents that need to be filed at the same time as well as the court fee which is currently £510.

The divorce procedure can be broken down into three main stages. The three stages of the divorce procedure are:

Stage 1. The divorce petition stage and application for directions
Stage 2. the pronouncement of the decree nisi
Stage 3. the decree absolute stage

Stage 1 – The divorce petition & Application for Directions for Trial (Special Procedure)

Your petition for divorce, setting out the grounds for divorce and the ‘fact’ relied upon must be filed at the court along with the court filing fee of £510.

Along with the divorce petition you must also file at the court the original of your marriage certificate and a Certificate as to Reconciliation.

At this stage you become the ‘petitioner’ and your spouse becomes the ‘respondent’. In adultery cases you may also have a ‘co-respondent’; that is a second respondent who will usually be the person with whom you allege that your spouse has been adulterous.

The divorce petition must then be served on your spouse, the respondent in the divorce suit.

This is usually done by post by the court. However in instances where your spouse is likely to want to avoid or delay the divorce proceedings they may need to have these documents served on them by a court bailiff or process server. We work closely with specialised teams of bailiffs and process servers who can serve these documents and even find and locate evasive spouses and their assets.

The divorce petition will be served on your spouse with an Acknowledgement of Service form from the court.

Your spouse has seven days from the date of being served with the divorce petition and acknowledgement of service form, to respond to the court indicating whether or not they consent to the divorce proceeding undefended.

Where your spouse confirms that they do not intend to defend the divorce and will consent to the divorce going forward undefended, the matter can then be listed by the court in what is called the ‘Special Procedure’ list.

Stage 2 – The Decree Nisi is Pronounced

In order for the divorce suit to proceed toward the pronouncement of the decree nisi of divorce, you, the petitioner, must file with the court a statement in support of your petition.

This is then filed at the court with an an Application for Directions For Trial (Special Procedure). This usually means that the court will set the matter down in the court diary for consideration by a District Judge.

You will not normally need to attend that hearing. At the hearing the District Judge will also consider the arrangements for the children. The District Judge will ‘pronounce the decree nisi of divorce‘.

The decree nisi of divorce is pronounced in open court and if anyone wishes to object to the decree nisi being pronounced then that is when they will have an opportunity to make their objection to the District Judge.

Stage 3 – The Decree Absolute of Divorce

Once a decree nisi has been pronounced then the petitioner must wait at least 6 weeks from the date of the pronouncement of the decree nisi before an application can be made to the court for the decree nisi to be made absolute. That is called the decree absolute of divorce.

Once a decree absolute of divorce is made then the marriage is officially at an end and the parties are formally divorced.

If for any reason the petitioner does not apply for the decree absolute of divorce six weeks after the pronouncement of the decree nisi then the respondent is not allowed to make this application themselves for quite a while longer.

The respondent cannot apply for a decree nisi to be made absolute until the expiry of three months after the expiry of the six week period. That means that a respondent cannot apply for a decree nisi to be made into a decree absolute of divorce until 18 weeks have elapsed after the date on which the decree nisi was pronounced.

After your divorce

Most people believe that once they are divorced then their former spouse can’t make an application for a financial settlement, called Ancillary Relief, against them. Sadly this is a big misconception.

Former spouses can usually still apply for a financial settlement in respect of a former marriage many years after their divorce.

That is one reason why divorcing couples should seek professional legal advice when contemplating divorce and not settle for the cheap DIY divorce kits and automated online divorce companies.

A professional specialist and expert firm of solicitors like Mansouri & Son Solicitors will ensure that at the time of your divorce a legally binding agreement is prepared for you and sealed by the court ensuring that your former spouse can never make a financial claim against you in future in respect of the marriage.

This is called a ‘consent order‘. What’s more we can usually do this for you at a fixed fee, we will deal with all the legalities and technicalities, all the drafting, the enquiries and the negotiations and leave you to start to recover your life knowing that you have a team of highly experienced specialist solicitors looking after your best interests at all times.

Call us today on 020 8401 7352 to book an appointment with an expert specialist divorce solicitor or email us your query.

For details of Islamic Divorce – Talaq – see here

Government to ‘consider’ introducing new electronic Wills

The government is considering a complete overhaul of the outdated method of making a Will. Under the new proposals it might be possible to make your Will in far simpler ways than at present. These new procedures could in some circumstances even include making a Will by email. At present there are strict requirements that must be met for a Will to be valid.

Naturally a Will is a very personal and powerful document. It expresses your views and wishes after you are dead. This in itself has led to many complications and of course Wills can be manipulated, even under the existing rules. There are concerns that relaxing these rules will bring with it benefits as well as further possibilities for abusing the last wishes of the terminally ill and elderly. People often make a Will when they are at their most vulnerable.

The government has denied that a proposed change to the laws surrounding wills could result in people sending wills by text message, as it concedes it is yet to consider the potential for increased fraud and litigation.

Responding to questions in parliament, junior justice minister Phillip Lee said that although a consultation by the Law Commission considered allowing for the provision of electronic wills (when technology allows) it would not mean that a text message could constitute a will.

Lee was asked what assessment the government had made to ensure people were protected by fraud should the Law Commission’s proposals be accepted.

Lee said: ‘The Law Commission has not made proposals to allow wills and other testamentary dispositions to be created by text message or similar informal routes. The Law Commission is, however, currently considering the law of wills, including how the law can provide for the making of electronic wills, whilst ensuring testators are protected against risks of fraud and exploitation.’

He added that the government would consider any recommendations but currently had no plans to change the legal requirements for creating a will and so no assessment of the potential for increased fraud and litigation had been made.

In July, the Commission published a consultation paper inviting views on several issues relating to will laws.

The relevant passage that sparked fears of wills by text message was in relation to introducing a dispensing power. A dispensing power, which is not currently available in England and Wales, enables a court to recognise a will as valid even if the usual formalities have not been complied with.

The commission said that if a dispensing power were introduced there are ’strong arguments’ that it should apply not only to traditional written documents but also to those in an electronic format, including a digital document or audio recording.

An example of where a dispensing power might be used could be if someone seriously ill in hospital might have more immediate access to a tablet or smartphone than to a pen and paper, and may be more able to speak than to write, the commission said. It added that it would be for the courts to assess the facts in an individual case.

The Law Commission consultation closes on 10 November. It is an opportunity for anyone with an opinion on the proposals to have their say. We encourage you to take the time to provide your comments to the proposals.

If you haven’t made a Will yet or are thinking of changing your Will, contact us on 020 8401 7352 and we can assist you. The costs of making a simple Will are next to nothing compared with the peace of mind that it gives you and your beneficiaries.