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.

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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 

G4S earn millions from Home Office Immigration contracts despite evidence of abusing deportation detainees

This week secret filming by the BBC Panorama inside the Home Office’s Brook House detention centre gave the world a preview of the abuses being committed against some of the most vulnerable in society. Abuses that are silently sanctioned by the Home Office.

Nevertheless the Detention Centre’s private contractor, G4S, is still hoping that its deal to run Brook House and neighbouring Tinsley House will be renewed by the Government. The company could also stand to make more money from another £600 million Home Office contract up for renewal: managing asylum seeker accommodation on the outside of detention. It seems that there is no end of money being earned, despite humiliating whistleblowing of the atrocious and inhumane practices of some G4S staff.

However, G4S is by no means the only corporation profiting from the detention and deportation machine. Indeed one other, Carlson Wagonlit, just had its own deal to organise deportation flights renewed for another 5 years.

The Home Office has created a “hostile environment” for migrants and this presents an outsourcing goldmine for private businesses willing to take advantage of the opportunity. Public sympathy is lacking for anything to do with immigration and sadly there appears to have evolved a culture of ‘turning a blind eye’ to practices that would be totally unacceptable in a normal prison environment.

Currently, nine of the Home Office’s eleven detention centres are run by private companies. G4S run the two Gatwick centres of Brook Hose and Tinsley House. Mitie has control of Colnbrook Detention Centre, Harmondsworth and Campsfield House; Serco runs Yarl’s Wood; GEO runs Dungavel and Tascor, a subsidiary of Capita runs and maintains Larne House and Pennine House short term immigration holding facilities.

Capita/Tascor has the additional contract of being in charge of “escorting” prisoners onto deportation flights — a contract G4S lost following the killing of Jimmy Mubenga in 2010. The planes themselves are flown by many airlines including charter company Titan Airways.

G4S’ current contract to manage Brook and Tinsley Houses is due to expire next spring. The deal was announced for re-tender last year, with a closing date for bids of 31 December.  But nine months later, there is still no news on whether G4S will stay in charge, and the new contract is supposed to begin in May 2018. G4S has said that it is continuing with its bid to renew the contract. The Home Office has a habit of refusing to comment when faced with specific questions.

New asylum housing contracts have been announced too

Two new contracts to run other pieces of the UK border regime have been announced in the last month: a £600 million tender for asylum seeker  housing; and renewal of the Home Office’s long-standing deportation flight-booking deal with “travel services” multinational Carlson Wagonlit.

Asylum seekers, when they’re not being locked up in detention centres, may be offered temporary housing in dispersal areas around the UK, and this housing is also outsourced for profit. For the most part asylum seekers are shipped out to slums and economically deprived estates, mostly in the North West and North Eastern England.

The system was last put to tender in 2011, under a scheme called “Compass” which invited companies to bid for six regional areas. Unsurprisingly G4S, Serco, and a joint venture involving Reliance were awarded all the contracts. Reliance later sold its prisoner transporting division to Capita, who then renamed it Tascor. So apart from logos, nothing really changed.

Thus the Home Office created a system where the same companies run both detention centres and outside accommodation for asylum seekers: a “one stop” solution where the same huge corporations move and transport refugees and immigration detainees from cell to what the Guardian newspaper termed a “rat-infested” hovel.

The new Asylum Accommodation contracts will start in September 2019 and last five years. They are likely to be divided up regionally, as in the current system. Full details aren’t out yet, as for now this is just a “consultation” period before the procurement process begins in November 2017. The winners are supposed to be picked by the end of 2018.

Questions have existed for years about how G4S managed to continue retaining these contracts despite overwhelming evidence of , became a byword for squalor, management intimidation, and facilitating racist attacks. More worryingly for the government and its corporate partners, they also hit financial troubles. In 2014, a National Audit Office report slammed the scheme, describing how G4S and Serco “struggled to get the contracts up and running”. The three companies themselves complained of losing money, because they were housing more people than they had planned for. In 2016 CEO Ashley Almanza claimed G4S could lose over £100 million on the deal, and said: “Were this contract before us today we would not be entering into it”. Any financial hit would have worsened when the Home Office exercised its option to keep the contracts running an extra two years until 2019.

Given Almanza’s comments, it might seem that G4S won’t be rushing to bid again. Campaigners against the G4S contract, though, are more sceptical. G4S don’t disclose how much money they are actually making (or losing) on these deals.

Carlson Wagonlit: specialist deportation travel agents

The renewed £5.7 million “travel services” contract , announced on 21 July 2017, went through with no such opposition. It involves booking flights for people being “removed” (the Home Office euphemism for deportation), as well as for their “escorts” (security guards). This includes both buying tickets on scheduled flights run by mainstream airlines, and chartering whole planes for the Home Office’s secretive mass deportation night flights. The contract will run for up to seven years, starting this November. The Home Office estimates in the contract announcement that it will spend £200 million on deportation tickets and charters over that period.

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BBC Panorama exposes Brook House Asylum & Immigration Removal Centre

On the front line of the fight to control immigration, BBC Panorama goes undercover in an Immigration Removal Centre and reveals chaos, incompetence and abuse. The centre is a staging post for detainees who face deportation from the UK. It is a toxic mix, and detainees who have overstayed visas or are seeking asylum can share rooms with foreign national criminals who have finished prison sentences. Some have been held in the privately run centre for many months, even years.

The covert footage, recorded by a detainee custody officer, reveals widespread self-harm and attempted suicides in a centre where drugs, particularly the synthetic cannabis substitute spice, are rife. Many officers do their best to control the chaos, but some are recorded mocking, abusing and even assaulting detainees.

Undercover ; Britain’s Immigration Secrets

What is an unspent conviction

People submitting applications to the UK Border Agency and the Home Office for immigration related matters are under a duty to disclose on their application forms any unspent convictions.

However; most people don’t really know what an unspent conviction is and this causes no end of problems with applications, often resulting in refusal of the applications by the Home Office and UKBA.

Failure to disclose an unspent conviction is very often an automatic reason for refusal of the application. The guidance below is produced to help potential applicants decide whether their conviction is spent.

If you have been convicted of a criminal offence you must declare your unspent convictions on any immigration applications related to the UK. You do not need to declare convictions that are spent.

A conviction becomes spent after a certain period of time has passed (this is called the rehabilitation period).

The length of time it takes for a conviction to become spent will depend on the sentence which was given by the court. It starts from the date on which you are convicted. The period may be shorter if you were aged under 18 at the time of your conviction.

If you have been sentenced to more than 30 months in prison for a single offence, this can never become spent. An application for British citizenship is therefore unlikely to ever be successful.

However in exceptional circumstances we have been able to assist clients even in this situation and if this applies to you then you should contact our office on 020 8401 7352 to arrange an appointment to see a specialist immigration solicitor.

If you have been convicted of a criminal offence but the rehabilitation period has passed by the time you make your application you do not need to provide details of the conviction on your application form.

If you were convicted of a further offence during the rehabilitation period of your original conviction, the rehabilitation period for your original conviction may be extended.

If you have been convicted of a criminal offence and the spent period has not passed you must include details of the conviction on your application form.

If the conviction is unspent at the time of your application, it is unlikely that your application will be successful, unless there are compelling compassionate circumstances or you can establish that refusal of your application is a breach of your Human Rights.

For further guidance on the rehabilitation period, please see Guide AN produced by the Home Office and UKBA. Information on how a conviction becomes spent, and a chart providing examples of rehabilitation periods for various sentences, can be found in the Good Character section of this guide.

Offences for which you may go to court or are awaiting a hearing in court must also be disclosed.

You must provide details of any offence for which you may go to court for or are awaiting a hearing in court. This includes any offences for which you have been arrested and are waiting to hear if you will be formally charged.

If you are living in Scotland you must provide details of any recent civil penalties.

If are arrested or charged with an offence after you have made your application you must let the UKBA and Home Office know.

Applicants should be aware that when applying for naturalisation it is not just serious criminal offences and convictions that will be taken into account. Convictions for any type of Road Traffic offence including speeding, drink driving, careless driving and driving without insurance or a licence will also need to be disclosed.

Even situations where you have had excessive parking fines will be taken into consideration and can result in refusal of your application.

Additionally you must disclose all civil judgements including but not limited to debts, bankruptcy and charging orders and enquiries will also be made of HMRC and your tax office to ensure that you have no outstanding tax liabilities.

Naturalisation is not as straightforward as many would assume. This is especially so when there are negative or potentially problematic issues relevant to the applicant. Convictions and debts are the tip of the iceberg.

It is wise always to seek professional and independent legal advice from a specialist immigration solicitor regulated by the Solicitors Regulation Authority.

Potential applicants should be wary of less experienced or unregulated individuals and companies claiming to be specialist advisers in immigration law.

To discuss your personal circumstances with a specialist immigration solicitor call 020 8401 7352 to book an appointment today, or contact us.