Post-Brexit rights: prepare for more surprises

We know from the prime minister’s recent speech to the Conservative Party’s spring conference, and the reaction to it, that Brexit has not gone away, despite the passage of time and the horror of the Russian invasion of Ukraine.

The courts for one keep reminding us that issues still need to be worked through. For instance, the Court of Appeal in Belfast recently rejected a challenge by judicial review of the Northern Ireland protocol. That received plenty of press coverage.

Two recent moves by the Court of Justice of the European Union (CJEU) on citizens’ rights received less. (A third one, about the UK’s failure to apply effective customs control on cheap Chinese textiles and footwear, was written about more widely, partly because it resulted in the UK owing a lot of back-money to the EU – Commission v United Kingdom, Case C-213/19).

To start with the lesser of the two CJEU cases, the advocate general gave an opinion late last month about the EU rights of UK nationals who live in EU member states (EP v Préfet du Gers and Institut national de la statistique et des études économiques, Case C‑673/20). A British woman who has lived in France for nearly 40 years, and is married to a French national, wanted to continue to participate in local elections in mid-2020, as she had been able to do previously. The advocate general confirmed that Brexit means that rights previously enjoyed by EU residents of UK nationality are lost on the UK’s departure, on the grounds that EU citizenship is itself lost. He pointed out that she was entitled to take up French nationality, which would have granted her the right to participate, but had chosen not to. The advocate general’s opinion is usually followed by the court in its subsequent decision.

The outcome in that case may seem obvious. But the outcome of the next one was less so. It came in a reference for a preliminary ruling from a Social Security Appeal Tribunal in Northern Ireland, which was considering whether a Pakistani national was entitled to child tax credit and child benefit for a child who was an Irish – and so an EU – national (VI v The Commissioners for Her Majesty’s Revenue & Customs, Case C‑247/20).

The case raised the question, faced by many from abroad trying to acquire rights in this country, including EU nationals post-Brexit, of whether the Pakistani national and her Irish child were covered by comprehensive sickness insurance (CSI) over certain periods. This is essential for certain categories of people to claim that they are lawfully in the UK and entitled to certain rights. The EU Law Analysis blog has interesting background as to how this question has dogged those seeking to settle here (tinyurl.com/4rf9r22u). My coverage is a brief summary of very complicated facts and law.

Previous UK jurisprudence held that reliance on the NHS for health coverage meant that the person was not self-sufficient, but rather a burden on government resources. Yet it was almost impossible to obtain CSI in the UK as a result of the blanket coverage of the NHS (and there was often a 12-month wait period before being eligible). That meant that claimants have been caught in an impossible bind, familiar to immigration and social welfare lawyers. On top of that, those coming to this country often did not discover that they needed CSI until years later, when their not having obtained it at the time disqualified them from certain claims.

The preliminary reference in question was made to the CJEU in 2020, during the transitional phase of our departure from the EU. A previous general complaint, not related to this case, had been made to the European Commission, but not acted upon, and one may speculate as to why such a thorny political question is only now being settled.

The outcome was that the court stated that it would be disproportionate to deny the right of residence to the Irish child, who was economically inactive, and his main carer, the Pakistani parent who worked and paid taxes, ‘on the sole ground that, during that period, they were affiliated free of charge to the public sickness insurance system of that state. It cannot be considered that that affiliation free of charge constitutes, in such circumstances, an unreasonable burden on the public finances of that state’.

Well, there you have it. Reliance on the NHS in those circumstances should not count against the EU national for the purposes of deciding whether he or she has CSI. This is now an available precedent, sought by a UK tribunal, for other EU nationals who are battling to establish their right to remain here, but are disqualified by the absence of CSI over periods of their residence.

There will surely be more surprises from future post-Brexit litigation.

Jonathan Goldsmith is Law Society Council member for EU & international and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society