Prior to the UK’s exit from the EU, EEA nationals who lived in the UK in accordance with the Immigration (European Economic Area) Regulations 2016 (“the Regulations”) for a continuous period of five years acquired the right of permanent residence.
For EEA nationals in the UK as a student or self-sufficient person, the Regulations required that they had comprehensive sickness insurance (CSI) for themselves and relevant family members to be considered as a qualified person, living in the UK in accordance with the regulations.
Advocate General Hogan’s opinion in case C-247/20, VI v Commissioners for Her Majesty’s Revenue & Customs, considers whether individuals in the UK as self-sufficient persons or students were required to have comprehensive sickness insurance after acquiring a right of permanent residence.
Legal status of Advocate General Hogan’s opinion in case C-247/20, VI v Commissioners for Her Majesty’s Revenue & Customs
This opinion is not legally binding, but will be taken into account by the Court of Justice of the European Union when it issues its final decision. The final decision will not be binding in the UK, due to the UK’s exit from the EU, but UK courts may have regard to Court of Justice decisions if they wish to.
Relevance for EEA nationals in the UK
Permanent residence is a status under EU law, which can no longer be acquired in the UK. Settled Status under Appendix EU is a status within UK immigration law and there is no need to have been a ‘qualified person’ during the five year period prior to settled status.
If an EEA national (or their family member) has been granted settled status under the EU Settlement Scheme, the lack of Comprehensive Sickness Insurance will not affect their right to reside in the UK. However, it is with naturalisation applications that the lack of Comprehensive Sickness Insurance becomes an issue. If an EEA national (or their family member) did not have CSI when required under the Regulations for their lawful presence in the UK, then that period would not be considered ‘lawful residence’ and that period would not be able to be used for the residence requirements when seeking to naturalise as a British Citizen. This can impact negatively on an assessment of an applicant’s good character.
Background of the case
The case concerns VI, and her entitlement to reside in the UK for the periods from 1 May 2006 to 20 August 2006 and from 18 August 2014 to 25 September 2016 and to receive, for these periods, Child Tax Credit and Child Benefit.
VI had a derivative right of residence on the basis that she is the primary carer of an EEA-national child who is self-sufficient (Regulation 15a(1) and (2) ). As VI and her son did not have CSI before August 2006 and after August 2014, it was not accepted by the UK authorities that VI had a right to reside in these periods. This was relevant for determining her entitlement to Child Tax Credit and Child Benefit.
It was accepted that VI’s son had acquired permanent residence, following his period of 5 years in the UK as a self-sufficient person with comprehensive sickness insurance. One of the questions before the Advocate General was whether VI and her son were required to continue to hold comprehensive sickness insurance after acquiring a right of permanent residence.
Conclusion of Advocate General Hogan
The Advocate General concluded in paragraphs 32 to 42 of the opinion that CSI is no longer required after an individual has acquired a right of permanent residence, due to the following provisions in Directive 2004/38.
Article 16 of Directive 2004/38 requires a child who is an EEA national to have comprehensive sickness insurance cover in order to retain his or her right of permanent residence as required during the period of temporary residence under Article 7(1)(b) of Directive 2004/38. Article 16(1) of Directive 2004/38 expressly states that ‘Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III’. Article 7(1)(b) is a provision of chapter III and therefore, this condition is therefore no longer required for an EU citizen who has legally resided for five years in the host Member State.
This is also confirmed in recital 18 of Directive 2004/38, which unambiguously confirms that EU citizens who have acquired a right of permanent residence are not subject to any conditions.
Naturalisation after permanent residence
Whilst not legally binding, if this opinion is followed by the Court of Justice, this finding will be helpful for those who acquired a right of permanent residence, who are applying for naturalisation as British citizens. It is important to know in which periods an application was required to have comprehensive sickness insurance as this is relevant to both the lawful residence and good character requirements in naturalisation application.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.