Bye, Bye, CSI?
John Donkersley looks at whether we’ve finally seen the back of the comprehensive sickness insurance requirement for EEA citizens in the UK?
CSI — or ‘comprehensive sickness insurance’ — was a requirement for any European Economic Area (EEA) citizen who relied solely on a right to reside as a student or as a self sufficient person to be lawfully resident in the UK. No CSI, no right to reside. Its effects continued even after the UK had left the EU and the transitional period ended, but two new developments may have sounded the death knell for CSI.
The EU Settlement Scheme (EUSS), which locked in European citizens’ rights to live in the UK, looked only at residence during the 5 years qualifying period you needed. It could be residence without a right to reside, so CSI didn’t matter. But if you were naturalising as a British citizen you still had to contend with CSI.
Becoming a British citizen
To naturalise as a British Citizen, you need 5 years lawful residence in the UK (3 years if you are married to a British citizen). If you had any periods of residence when you were self sufficient or a student but without CSI — and thus had no lawful right to reside — your application could be refused. It might also be refused on good character grounds if you had periods of unlawful residence in the last 10 years. The Home Office could excuse your lack of CSI if you had a reasonable excuse — and often did — but you risked losing £1,250 of your application fee. Lots of EEA citizens decided not to apply.
Section 9 of the Nationality and Borders Act 2002 came into force on 28 June 2022. If you have indefinite leave (including settled status from the EUSS) the Home Office will now grant your application without enquiring into whether your 3 or 5 year period of residence was, in fact, all lawful.
This is good news because you no longer need to explain why you didn’t have CSI. The same legal change also helps anyone who’s had periods of overstaying or who had entered illegally.
The Home Office’s naturalisation policy seems explicit on this:
“If the applicant has indefinite leave to enter or remain in the UK (ILE or ILR) you do not need to look back to see if they were here lawfully. You may proceed to grant the application if all the other requirements are met.”
It then goes on to say:
“For example, you do not need to enquire what activity was being undertaken or whether EEA nationals with ILR needed or had comprehensive sickness insurance.”
Despite the policy document saying ‘The good character guidance has been amended to be consistent with this approach’, it took several months until this was amended in September 2022!
The guidance on good character requirements finally amended it’s references to lack of CSI and confirmed that periods of unlawful residence, during the 10 years before you apply, would not normally be a barrier. However, it still retains a section on CSI that, presumably, is reserved for those few occasions when they do look at whether the residence was lawful. That section does not seem to accord with the decision in VI (see below)
The guidance on naturalisation applications confirms that, in relation to evidence:
‘you will not need to send evidence of what you were doing in the UK prior to being granted settled status.’
You can therefore, with some confidence, ignore unlawful residence in the 10 years before you apply, and beyond.
The Home Office might still, but rarely, use the lack of lawful residence against you. The Home Office’s naturalisation policy says they’ll do this if they’ve just found out about something which might have affected the decision to grant indefinite leave. This could be a misrepresentation or a failure to disclose relevant information when applying, for instance past illegal entry, or the use of a false name.
It’s also worth mentioning that they now have a power to allow naturalisation where you didn’t satisfy the rule that you need to be in the UK on the exact day 5 (or 3) years before the date you apply. Their policy, though, restricts this to when there are exceptional reasons — such as being kept out of the UK because of the pandemic.
The VI case
The second CSI development is the case of C‑247/20 VI v Her Majesty’s Revenue and Customs. This was a case decided in March 2022 in the Court of Justice of the European Union (CJEU). The court decided that:
“68. VI and her son were affiliated during the period in question… to the United Kingdom’s public sickness insurance system offered free of charge by the National Health Service…
69 … 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 UK government has accepted this, and issued new guidance on 31 October 2022. They have yet to engage with the issue of whether they might have to pay damages to those who suffered loss through a breach of EU law— a huge number.
The guidance states that, because EEA nationals did not have to be exercising a Treaty right to be entitled to use the NHS free of charge then, providing they were ordinarily resident, they held CSI.
However, non-EEA family members would have to show that their EEA national family member was exercising Treaty rights to be considered ordinarily resident, able to access the NHS, and hold CSI by virtue of this. This may mean that the Home Office might try to argue that where the EEA national did not hold an ‘actual’ CSI policy for all their non-EEA dependents, they consequently didn’t have a right to reside. The Home Office might argue that reg. 4(3)(b) of the EEA Regulations applied, which from 2015 required the whole family to have CSI before an EEA student or self-sufficient person had a right to reside. There may be more litigation on this!
In most cases, it’s only relevant to historical decisions, made by 31 December 2020, and for those few naturalisation cases where they still might look at CSI. For the latter, the naturalisation by discretion guidance says caseworkers should consider whether is appropriate to exercise discretion in their favour. If they’d previously had permanent residence refused because of a lack of CSI, then caseworkers have to check that this was correct in the light of VI but, if it was, there must be compelling grounds before discretion is exercised.
After 31 December 2020, ordinary residence was dependent on Withdrawal Agreement rights. However, if an EEA national has, or had, settled or pre-settled status then they were allowed access to the NHS, which is CSI. Students and the self-sufficient - in those very narrow circumstances where they might still be entitled to a benefit dependent on a right to reside — can legitimately say that CSI should not be a barrier.
That said, Universal Credit (UC) claimants with pre-settled status who are students or self-sufficient — but have no current CSI — are unlikely to use the decision. Many students will be excluded due to being classed as ‘receiving education’. And you can only be self-sufficient if you have enough resources that you’re not an unreasonable burden on ‘social assistance’. Social assistance includes UC, so self-sufficient EEA citizens have rarely succeeded in claiming except for very short periods that might not be unreasonable.
Some claimants may have been victims of a previous decision that they didn’t have permanent residence (PR). Where this was because they lacked CSI for part of the 5 years lawful residence they needed for PR, they might want to see if they could re-open the decision. There will be few of these, and they’ll probably already have settled status or have an EUSS application outstanding.
The Upper Tribunal had already followed the CJEU decision in a Housing Benefit case — WH v Powys County Council and Secretary of State for Work and Pensions: [2022] UKUT 203 (AAC). It held that a self-sufficient claimant had achieved permanent residence through the appropriate period of residence during which they had ‘affiliation’ to the NHS to satisfy the CSI requirement.
The DWP can treat those applying for settled status as already settled and pay them anyway. If they don’t - so the date on which they might have attained ‘permanent residence’ is relevant - or it concerns either a different entitlement or an immigration decision, then claimants should take specialist advice — not least because there are time limits for such challenges.
It’s good to see that CSI is basically gone, but more could have been done by the Home Office to amend their guidance sooner, and to rectify the harm that past refusals have caused.
John Donkersley is Senior Immigration Expert at Citizens Advice.
The information in this article is correct as of the date of publication. Amended 23 August 2022 to add reference to the WH v Powys case. Amended 26 September 2022 following publication of the new Good Character policy. Amended 1 and 28 November 2022 to refer to new Home Office guidance.
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