In a written Parliamentary answer yesterday the Government stated self sufficient or studying EU citizens without comprehensive sickness insurance (CSI) are “not lawfully resident” in the UK and “may be liable for removal” but that it is “longstanding Home Office practice” not to seek removal because “it is relatively straight forward to rectify.” The implication seems to be that those without CSI are expected to “rectify” their situation.

Employed and self employment EU citizens are not required to possess comprehensive sickness insurance.

This seems to confirm my analysis in an earlier legal briefing: the Home Office considers that Articles 20 and 21 TFEU, which establish the right to move to and reside in other Member States, have no effect independently of Directive 2004/38. It is a very questionable legal position and it has all sorts of implications.

Whether lack of lawful residence might have an effect on applications for naturalisation is unclear: other migrants who reside unlawfully are barred from naturalisation on good character grounds. Further, if a person is resident unlawfully they are probably not “ordinarily resident” and might therefore be subject to NHS charges and if they have received treatment owe an NHS debt.

Nevertheless, it is hopefully of some reassurance to EU citizens that it is current practice not to seek their removal.

The full text of the question and answer:

Free Movement of People : Written question – HL5917

Asked by Baroness Lister of Burtersett (Asked on: 08 March 2017)

To ask Her Majesty’s Government, further to the Written Answer by Baroness Williams of Trafford on 28 February (HL5522), whether they intend to remove from the UK those EU citizens who are residing in the UK otherwise than in accordance with the Free Movement Directive.

Answered by: Baroness Williams of Trafford (Answered on: 27 March 2017)

Under EU law, EU nationals who wish to stay in the UK for longer than three months can only do so if they are exercising a Treaty right. This means that they must be a jobseeker, worker, self-employed, self-sufficient or a student. The Free Movement Directive (2004/38/EC) requires students and self-sufficient persons to have comprehensive sickness insurance and sufficient resources to support themselves and their families to not become a burden on the UK’s social assistance system.

At present the UK remains in the EU, and as such, EU nationals continue to be subject to the rights and responsibilities set out in existing legislation which governs the exercise of free movement in the UK. EU nationals that do not meet the requirements of the Free Movement Directive are not lawfully resident in the UK and may be liable to removal.

However, because it is relatively straight forward to rectify and establish a right to reside in the UK, longstanding Home Office practice is not to seek the removal of EU nationals solely because they do not have comprehensive sickness insurance but have otherwise met the requirements under EU law.