The European Parliament is to investigate the British Government’s treatment of EU nationals living in the UK or those who have applied for citizenship or permanent residence since the Brexit vote.
Of particular interest to me, is a specific group of people who are facing difficulty qualifying for permanent residence under EU law. We know that there are four main ways to acquire a right of residence:
- Being a worker
- Being self-employed
- Self-sufficient or study
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 the right of residence and then permanent residence this way. Many spouses however, have not been working in the UK, and therefore do not qualify by those routes. They are the group that are of interest to me because they might potentially qualify as being self-sufficient. There are two main reasons why the applications under the basis of self-sufficiency might be refused.
First, because the Home Office does not make sufficiently clear that household’s income; for example the income of the spouse or family member can be taken into account for showing self-sufficiency.
Secondly, for a person to qualify as self-sufficient the person must have comprehensive sickness insurance; the Home Office takes the view that access to the NHS does not count. In EU law the income of the spouse or the partner and the 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-sufficient. There is no particular level of support that is necessary as long as the person avoids becoming a burden on the social assistance system. The true position is that the income of the British national family member should be counted towards self-sufficiency. The other major problem for EU national spouses of British citizens is that self-sufficient persons need comprehensive sickness insurance in order to qualify for a right of residence and thereby eventually a right of permanent residence. The UK Government’s position with regard to comprehensive sickness insurance is that access to the NHS does not count as comprehensive sickness insurance because it is not insurance based. Whether a private health insurance policy is comprehensive will be decided on a case by case basis with little central guidance.
In sickness and in health
Many EU citizens may benefit from comprehensive sickness insurance by virtue of reciprocal arrangements between the UK and the persons from member states, 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. The EU commission says that access to the NHS should count as comprehensive sickness insurance. In some cases people are refused residence documents by the Home Office because the insurance policy doesn’t cover pre-existing health conditions, but no policy ever does and it should not be a bar from being granted a residence card.
If you wish to apply under the basis of being self-sufficient spouse and you do not have comprehensive medical insurance, you need to get it now. If you do not have it and you want to apply for permanent residence you can wait and see what happens with the UK negotiations to leave the EU. It is likely that some arrangements will be made for EA nationals who happen to be living in the UK on a certain date, but do not have a right of residence or permanent residence. Alternatively, you can become a worker or self-employed person who doesn’t require comprehensive sickness insurance.