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Test 2: Not an unreasonable burden (including comprehensive sickness insurance)
To be entitled to UC, EEA nationals who are accepted as 'self sufficient' also need to show that they and their family members have sufficient resources to avoid becoming a burden on the social assistance system. This includes having comprehensive sickness insurance cover.

Until a CJEU ruling C-247/20 VI on March 10th 2022, caselaw ruled that access to NHS healthcare did not constitute comprehensive sickness insurance. But this case has ruled that EU Directive 2004/38 had been misinterpreted.
In paragraph 69 the Judgement states:
"...once a Union citizen is affiliated to such a public sickness insurance system* in the host Member State, he or she has comprehensive sickness insurance within the meaning of Article 7(1)(b) "
*ie the NHS.
And in paragraph 70:
"It cannot be considered that that affiliation free of charge constitutes, in such circumstances, an unreasonable burden on the public finances of that State. "

NOTE: A self sufficient claimant relying on their access to the NHS as proof of comprehensive sickness insurance may well be refused UC and have to request a MR and then appeal. Please contact us on info@housingsystems.co.uk of you encounter such a situation.

A claimant will also be considered to have comprehensive sickness insurance where the UK is entitled to reimbursement of NHS healthcare costs from another Member State - usually where they are getting  a pension or invalidity benefit from that State. 
 
If an EEA national claims benefits after having lived in the UK for some time without having to rely on social assistance, this will be taken into account when deciding whether the burden is reasonable, as will the length of time that they are likely to be claiming benefits.
 
EEA Nationals who have no prospect of finding work or needing benefits for a long time may be considered an unreasonable burden on the state.

Example:

Denis is from Poland. He has been in work but has had to give up work to care for his partner, Lena who has terminal cancer. She has been awarded PIP and he claims Carers Allowance, but they need more income to cover their bills. He makes a claim for Universal Credit, but is initially refused as failing the HRT. However he proves that he has comprehensive medical insurance and explains that he has a small occupational pension as well as the PIP and CA, so the DWP agree that he and Lena will not be a burden on the state for very long, so they can claim UC.


Can a child /qualifying young person be self sufficient, and does this help?
 
In some situations a child/qualifying young person might be considered self-sufficient - for example where they are receiving moderately high child maintenance payments. In such cases the primary carer might be able to derive the right to reside through their child, but only if the child has comprehensive medical insurance and the parent is "materially dependent" on them.

Example:

Mulubwa from Nigeria lived in France for a while with her French partner, and she had a son, Jacques, who is now fifteen years old. When Jaccques was twelve they moved to the UK.
Jacques's  father, who never worked in the UK, left Mulubwa two years ago when she developed MS. He has no contact with the family now, having moved back to France, but pays regular maintenance for Jacques' care. Jacques has comprehensive medical insurance and he uses some of his maintenance to help out with Mulubwa's bills, as her PIP is insufficient to cover everything; plus he provides care and support because of her disabilities.
As Mulubwa is materially dependent on Jacques, and Jacques is "self sufficient" Mulubwa counts as the family member of an EEA national (Jacques).


Regulation 16(2) of the Immigration (EEA) Regs 2016 gives the qualifying conditions:
  • the applicant is the primary carer of an EEA national (“the relevant EEA national”), and
  • the relevant EEA national:
    • is under the age of 18;
    • is residing in the UK as a self-sufficient person: and
    • would be unable to remain in the UK if the primary carer were required to leave the UK."
Self sufficiency as a route to Permanent Residence status

An EEA National will have 'permanent residence' if they can show that they have been in the UK as a 'qualified person' for a continuous period of five years or more.

A 'qualified person means they either:

  • Were in 'genuine and effective' work, or
  • Had 'retained worker status', or
  • Were 'self sufficient' with comprehensive medical insurance, or
  • Were a 'family member' of an EEA National with qualified status, or
  • Were a 'jobseeker'
  • Or a combination of the above.

For what these mean go to this page and follow the links.

A 'family member' of an EEA national can also use a period while they have been 'piggybacking' on the EEA National's qualifying 'Right to Reside' status - including self-sufficient status - to build up their own permanent residence, so that after five years of 'piggybacking' they will have acquired permanent residence status themselves. 

So a claimant seeking to show they have acquired permanent residence status may need to prove that they, or their EEA relative, did have a qualifying right to reside as a self sufficient person with comprehensive sickness insurance for a period in the past.

Many individuals were incorrectly told that they did not qualify because they had no private sickness cover.
In fact, because of the CJEU ruling, they would have qualified (assuming they passed Test 1: self-sufficiency.)


Some immigration law experts believe that despite having left the EU, individuals who have been financially disadvantaged by being incorrectly denied self sufficiency status have a short window of opportunity to claim damages, so long as the facts on which the claim is based happened before 31 December 2020, and so long as the damages claim begins before 31 December 2022. 
Anyone in this position needs to seek advice from a registered immigration adviser or lawyer.

Self sufficient Students
Article 7 of EU Directive 2004/38 gives certain EEA students a qualifying right to reside for benefit purposes. This is where they are:
" enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and

have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence"

This means that the test of self sufficiency is less stringent than for non-students seeking to show self sufficiency.
However there remains the requirement to have comprehensive sickness insurance.
On March 10th 2022, the CJEU in C-247/20 VI ruled that access to NHS healthcare does count as comprehensive sickness insurance, and that previous refusals on the basis that it did not, were incorrect. Please see the modules above for more on this issue.

For our eyes only - comment from Eliot Kent on Rightsnet

I think the case can safely be relied on as authority that the CSI requirement is met where a person has NHS access. Most obviously that would be used for people arguing for permanent residence by reference to past periods as students/self-sufficient people or family thereof. It could be used by people with pre-settled status or pending EUSS applications who are currently students or self-sufficient (or family thereof) although these groups are naturally less likely to be claiming most benefits.

The court’s use of the terminology ‘affiliation’ to a ‘public sickness insurance system’ is somewhat arcane but it does need to be borne in mind that its decisions need to be published and comprehended in different languages and applicable across the EU. It is obvious that the Court had NHS access firmly in mind. The court’s discussion at para 69 of the idea of economically inactive EU nationals having reduced or limited access to public health systems is really just theoretical. As the blog linked to above notes, no such restrictions exist in the UK.

Strictly as the decision was made after the end of the Implementation Period, it does not form part of the canon of ‘retained EU case law’ which binds the lower courts as a matter of domestic law. However it remains about as highly persuasive as it is possible for a decision to be. This is particularly in view of the fact that the case is a pre-IP referral to the CJEU from a UK court and therefore has binding effect under the terms of Art 86 and 88 of the Withdrawal Agreement and because it touches on issues of citizens rights under the Withdrawal Agreement which remain within the jurisdiction of the CJEU for 8 years post-IP as under Art 158.

So in other words, I don’t think there is much to worry about.






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