The House of Lords may have backed an amendment to protect the rights of EU nationals after Brexit, but the level of fear among nationals of other EU countries about their future has hit new highs.
Meanwhile, a briefing published by a well-known immigration law blogger, arguing that the Home Office had extended its powers to remove citizens for the European Economic Area (EEA) who were unlawfully living in the country, has increased uncertainty.
The actual change in the law and guidance is minimal, and the Home Office insisted that it was wrong to imply it had new powers to deport people. But the impact of the guidance on some groups of non-UK EEA nationals is immense.
The key issue at stake is the requirement for comprehensive sickness insurance. Any EEA national from outside the UK wanting to reside lawfully in the UK for more than three months but who is not working or self-employed, has to show that they have health insurance. This means students and EU citizens who are not working need to prove that they are not solely relying on the NHS for their medical cover. Even if they have never used the NHS – or used it without being asked to pay or prove they had insurance.
This relates to a 2004 EU directive which was intended to ensure that those member states with a high influx of EEA nationals do not have their welfare and health care systems overburdened. The UK’s implementation of this EU law is questionable but has so far been challenged in the UK courts without success. Although other countries in the EU have similar rules, no other country has a health system comparable to the NHS in which the majority of the population do not have private health insurance.
The update on the rules and guidance seem to be aimed at allowing the Home Office to crack down on those EEA nationals living in the UK without any means to support themselves, such as rough sleepers. This is not a new development and started long before the referendum in June 2016.
The new guidance change, in effect from February 1, enables the Home Office to ask EEA nationals to verify their right to reside by inviting them for an interview. If they fail this, an order of removal can be issued. Until now, the assumption has always been that all EEA nationals are residing in the UK lawfully, so the change could now see a rise in individuals being treated suspiciously.
Those EEA nationals who have lived in the UK for more than five years and are seeking to apply for permanent residency via an 85-page form, have already had to grapple with the rules regarding health insurance.
The updated Home Office guidance shows complete ignorance of the various backgrounds and situations that EEA nationals living in the UK may have. It will have a particular impact on students and spouses of British citizens who are not in full-time employment.
A non-UK EEA national studying in the UK is required to hold comprehensive sickness insurance. Usually, through the European Health Insurance agreement, they would be able to rely on the health care insurer in their home country while they study in the UK, as long as it is clear that they have no intention to settle. However, each member state has a different insurance system and it is not always a simple process to be able to rely on the home insurance provider when accessing services in the UK. There are also usually no checks of the European Health Insurance Card when EU citizens access the NHS. The NHS operates a residency-based insurance system, so a UK address will suffice.
The situation for EU citizens who are married to British citizens is less easily fixed and some could technically face being removed if they do not meet the criteria set out in the new guidance.
Many EEA nationals come into the UK to be with their British spouses. A huge proportion of them are women, and become stay-at-home mums or part-time workers. But unlike immigrants to the UK from outside the EU, EEA nationals married to British citizens cannot claim any rights to reside because of their married status. For example, an American can be married to a British citizen and rely on that marriage when claiming a right to reside in the UK, but EEA nationals can’t. They will always be treated in their own right, which means that if they do not work and are not holding comprehensive sickness insurance they fall in the Home Office target group for removal.
The briefing note that has caused the stir discusses two points that are worth making here. The first is that it is very unlikely that students and spouses will actually be targeted in practice. While this guidance suggests that the removal from the UK is possible, the target group is a different one – rough sleepers. And the government has made clear it doesn’t intend to remove people who don’t have comprehensive sickness insurance. But it’s clear that the UK government is confident its approach does not break the law, including the European Convention on Human Rights.
The second point is that the British government is of the view that those EEA nationals that are EU citizens do not have a right to reside in any member state because of that citizenship status – even though this is contrary to the wording of the EU treaty. Article 21 of the treaty clearly states that every EU citizen is free to reside in any member state of the European Union. The government, however, only refers to the rights outlined by the 2004 EU directive. This view is yet to be challenged in the courts, though it could well be in the future.
So while there is no need for EEA nationals to panic, all of this adds to uncertainty for those waiting to hear whether they will have the right to stay in Britain after Brexit.