About this case:

• Citation:
  C-247/20
• Judgment:
  External link
• Court:
  CJEU

In yesterday’s judgment, the Fifth Chamber provided insight into the interpretation of Article 21 TFEU and of Articles 7 and 16 of Directive 2004/38/EC on the right of EU citizens and their family members to move and reside freely within the territory of the member states.

The court clarified that the applicant, VI, had established a right to reside in the United Kingdom by virtue of her son’s acquired right of residence and her family’s comprehensive sickness insurance cover under the NHS.

Background

VI was a Pakistani national residing in Northern Ireland with her husband, also a Pakistani national, and their four children. In 2004, their son, who has Irish nationality, was born there. By virtue of his lawful residence in the UK for a continuous period of five years, VI’s son acquired a right of permanent residence in the UK.

Immigration regulations in the UK has defined categories for workers, self-employed persons, self-sufficient persons and students. Regulation 4(1)(c) defines a “self-sufficient person” as a person who has sufficient resources not to become a burden on the social assistance system of the UK during the person’s period of residence and who has comprehensive sickness insurance cover in the UK.

VI and her husband were able to support themselves as he worked during all the periods at issue in the main proceedings. They had comprehensive sickness insurance cover and VI therefore enjoyed, pursuant to Regulation 15a(1) and (2) of the Immigration Regulations 2006, a derived right of residence as a person who was the primary carer for a child who was a “self-sufficient” EEA national.

HMRC contended that VI could not rely on her rights as a self-sufficient person because she was not covered by comprehensive sickness insurance during those periods. Consequently, she was not entitled to either the Child Tax Benefit or to Child Benefit from 1 May 2006 to 20 August 2006 and from 18 August 2014 to 25 September 2016.

HMRC did concede that the amount of any overpayment could not be recovered from VI since VI neither misrepresented nor failed to disclose any material facts.

The Social Security Appeal Tribunal (Northern Ireland) (United Kingdom) decided to stay the proceedings and to refer questions to the Court of Justice for a preliminary ruling. The reference was made in March 2020 before the UK had exited the EU and when EU law continued to have full force and effect in the UK.  

Question 1

Is a child [EEA] permanent resident required to maintain comprehensive sickness insurance in order to maintain a right to reside, as s/he would as a self-sufficient person, pursuant to Regulation 4(1) of the [Immigration Regulations 2016]?

The court noted that Article 16(1) of Directive 2004/38 expressly provides that the right of permanent residence, which VI’s son had acquired, “shall not be subject to the conditions provided for in Chapter III”. That right was therefore not subject to Article 7(1)(b), which required that they have sufficient resources and comprehensive sickness insurance cover for themselves and their family members.

Further, the court noted that it was settled caselaw that the permanent residence of a minor implies, under Article 21 TFEU, a right for the parent who is the primary carer of that minor to reside with him or her in the host member state.

The answer to the first question was that “neither a child, a Union citizen, who has acquired a right of permanent residence, nor the parent who is the primary carer of that child is required to have comprehensive sickness insurance cover, within the meaning of Article 7(1)(b) of that directive, in order to retain their right of residence in the host State”.

Question 2

Is the requirement, pursuant to Regulation 4(3)(b) of the [Immigration Regulations 2016] (that Comprehensive Sickness Insurance cover in the United Kingdom is only satisfied for a student or self-sufficient person, with regard to Regulation 16(2)(b)(ii) of the [Immigration Regulations 2016], if such cover extends to both that person and all their relevant family members), illegal under EU law.

Again, the court noted that the minor citizen’s right of residence extended to the parent. The child’s comprehensive sickness insurance could cover his or her parent, or, in the inverse case, a parent’s insurance could cover the child.

In this case, VI and her son had relied on the NHS, a public sickness insurance system offered free of charge. The court found this to be a valid form of comprehensive sickness insurance: “the fact remains that, 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)”.

The court stressed that it would be disproportionate to deny a right of residence on the sole ground that they were affiliated free of charge to the public sickness insurance, especially where the citizen in issue was a child, whose father had paid taxes throughout his employment.

The court found that it “cannot be considered that affiliation” with a free-of-charge institution constituted, in such circumstances, “an unreasonable burden on the public finances of that State”.

Question 3

Are the Common Travel Area reciprocal arrangements in place regarding Health Insurance cover between the United Kingdom and the Republic of Ireland considered “reciprocal arrangements” and therefore constitute Comprehensive Sickness Insurance for the purposes of Regulation 4(1) of the [Immigration Regulations 2016]?’

The court regarded this question as inadmissible, and did not offer a response.

Conclusion

Although the court answered the above questions in VI’s favour, it rejected her request to apply the expedited procedure to the case.

VI had requested an expedited case because she feared that Brexit would affect the court’s judgment; that HMRC were still seeking to recover payments previously made to her; and because she had not been paid benefits which she felt entitled to.

The court rejected these arguments, and noted that HMRC accepted that any overpayment could not be recovered from VI since she had neither misrepresented nor failed to disclose any material facts.

Further, the court found that the unpaid benefits sought would not have caused “material destitution capable of justifying recourse to the expedited procedure”. The fact that an expeditious case was in VI’s “interest” was not sufficient to warrant its use under Article 105(1) of the Rules of Procedure.