Not only has the government – and parliament – failed to guarantee the rights of EU citizens living in Britain post-Brexit, many such citizens are already being refused permanent residency due to not having had Comprehensive Sickness Insurance. Aleksandra Herbeć outlines the vagueness surrounding the up-until-now obscure requirement for permanent residency, and explains how such a vital prerequisite should have been publicised instead.

The legal loophole you have never heard of

The term ‘Comprehensive Sickness Insurance’ (CSI) has suddenly become a hot topic among EU citizens in the UK. For many, as well as for their British relatives and friends, this was the first time they have ever heard about CSI. Yet for many years, the CSI has been a requirement for all EU citizens studying in the UK or residing here as self-sufficient persons. Without it, they cannot exercise their treaty rights and acquire permanent residency, which would normally be automatically granted after spending a continuous period of five years in the country. But, without a valid CSI, the years spent in the UK do not count towards permanent residency. Ominously, the current rules – some of which were introduced as recently as February 2017 – have been interpreted by lawyers as giving the Home Office the power to even deport EU nationals who do not have CSI.

The British media scrambled to publish curious assurances that the rules on deportation will not be acted on. The Independent went as far as quoting an immigration barrister saying that he does not think that “the Home Office is going to enforce this against say, the French wife of a British citizen. I think they’re using it against people they don’t like, like Polish rough sleepers.”

The CSI is a concern for thousands of EU nationals who, for a proportion of their period of residence in the UK, were either a student, or a self-sufficient person (e.g. carers, stay-at-home spouses, or part-time workers). This would include cases in which an EU national worked full-time for 4 years and then enrolled at a UK university without having a CSI, thus unwittingly interrupting the 5-year residency rule.

It is hard to understand why the centrality of CSI has surfaced only now, while the rules surrounding it are also vague. Information on CSI is curiously sparse, being only briefly mentioned in the guidance notes and application. More broadly, the UK government has been passing laws on CSI without communicating them widely, not even through the organisations directly in contact with EU citizens, such as universities, while upon arriving to the UK, EU nationals have not been provided with clear information on this requirement.

Not so ‘comprehensive’

Once an EU citizen somehow finds out about CSI, they face another challenge: there does not seem to be a reliable definition on what private insurance coverage would qualify as comprehensive in the eyes of the Home Office. Some private insurers advertise CSIs, but state they are not liable if their insurance ends up not meeting requirements. An insurance broker contacted by the author claimed that the Home Office has not issued guidelines on CSI and that they go by what is reported in the media and by their own experience with residency applications.

Nor does having health insurance from another EU country necessarily mean an EU citizen has CSI. Instead, they should have had a European Health Insurance Card (EHIC) issued by another EU member state for throughout the period during which they were a student or self-sufficient person in the UK. However, by residing in the UK, many EU citizens would have lost access to healthcare in their country of origin, seizing to be covered by such health insurance as a result. In a further administrative paradox, relying on an EHIC issued by another EU country will only be accepted if one confirms their intention not to live in the UK permanently.

Source: gov.uk

The intention behind the CSI altogether is so that students and self-sufficient person do not become a burden on state resources during the qualifying period. Yet this logic is unclear: the permanent residency application only requires one to have had a CSI – not to have made use of it. Indeed, people with CSIs can still access GPs and all treatments on the NHS. EU citizens are in many circumstances required or strongly encouraged to register with a GP, including when enrolling at a university. Moreover, private insurers do not cover all treatments even under the ‘comprehensive’ sickness insurance, often delegating the treatment of chronic conditions to the NHS.

The CSI is also discriminatory. Contrary to the Immigration Health Surcharge paid by international students in the UK, there is no standardised rate for private CSI for EU nationals. The CSI premiums depend on age, sex, health, and prior conditions, among others. This disadvantages EU nationals who are women, older, and have current or prior health conditions. Even the cheaper options for healthy young adults (c. 30-40£/month) could be unaffordable to many.

Obtaining CSI seems to be a purely administrative, box-ticking task for the PR form, without much real-life relevance or benefit to EU citizens, or to the NHS. In its current form, the CSI confers an unnecessary financial burden and a discriminatory barrier to residency.

How about universities?

It seems that UK universities failed to offer their EU students explicit information about CSI. In certain cases, they offered reassurance to the opposite – that EU students do not require health insurance, further signaling the obscurity surrounding CSI, with few institutions equipped to offer specific guidance even today.

The author of this article has yet to meet an EU student who knew about the CSI before the issue surfaced in the media in the last weeks. Many still do not know about it. Some websites suggest that some university application forms for EU/EEA nationals ask whether the student holds CSI. However, given the legal implications of not having CSI, it does not seem sufficient to be informing students about it via a box-ticking exercise or a brief mention on application forms. Crucially, the information about CSI should always be contextualised and accompanied by information clarifying that (i) access to the NHS does not count, and (ii) that CSI is required to exercise treaty rights and accumulate residency rights.

What should have been done about CSI

The CSI regulations have not been implemented effectively, but this could have been avoided. The legality, practicality, and logistics of CSI should have been scrutinised before implementing the rules, and if they were still deemed to be appropriate, then:

  1. The UK government should have been more transparent and vocal about the rules for EU citizens, and particularly CSI.
  2. There should have been procedures in place to ensure that EU citizens planning to come to the UK, and those already residing here, but also British citizens who might be related to or employing EU nationals, were appropriately informed.
  3. Information about the CSI requirement should have been disseminated in a useful and non-threatening manner through many channels: at passport controls, via GPs, schools, religious associations, banks, the media, unions, as well as universities. Such a campaign should have been initiated ahead of the proposed changes to legislation and should have continued ever since.
  4. A simple government website should have been set up with comprehensive information on CSI, listing clear rules as to what cover would qualify for a private CSI, and a list of approved providers. This would have ensured that EU nationals did not purchase wrong or invalid policies.
  5. Universities should have been provided with guidelines on CSI, and so that they could inform EU applicants.
  6. EU citizens should have been provided with means to acquire CSI in time, including ‘buffer periods’ to accommodate a change in circumstances.
  7. EU citizens should have been able to make direct contributions to the NHS fund, if they wished to, rather than to private insurers.

Challenging the CSI requirement

The current regulations and procedures surrounding this requirement put EU citizens in the UK at a disadvantage when they apply for residency. Not surprisingly, CSI has been considered unlawful by some lawyers, and has been challenged in UK courts with no success. Several petitions and MPs have also called for abolishing the rule. EU Rights Clinic tries to put a new case together and calls for stories on PR being denied due to lack of CSI. The time is also high for universities to join their plea to protect the rights of their current and former students.

Abolishing the CSI requirements altogether – and especially for permanent residency applications – seems the only reasonable course of action. However, abolishing the CSI itself will not be meaningful without further securing EU nationals’ rights in the UK post-Brexit.

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Note: A longer version of this post was originally posted on the LSE Brexit blog. Featured image credit: @RochDW, licensed under Public Domain Mark 1.0

About the Author

Aleksandra Herbeć (@AHerbec) is a PhD candidate in the Department of Behavioural Science and Health at UCL. She works in the field of tobacco control, and her current research focuses on the development and evaluation of digital behaviour change interventions and capacity building in the treatment of tobacco dependency.

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