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Brexit: local elections, health cover, pre-settled status

WE REMIND our readers who are EU nationals in the UK that you can still vote in the local elections on Thursday 5 May. But you need to register on your local electoral roll by 14 April to do so. To check whether your local council has elections on 5 May, and for advice on how to register, see here.

EU flags; Photo: Matt Salusbury

European Union flags

In other Brexit news, the requirement that some EU nationals working or studying in the UK needed "Comprehensive Sickness Insurance" has been thrown out by the Court of Justice of the European Union (CJEU. Being covered by the NHS counted as "sickness insurance". And a new report identifies problems with the post-Brexit Settled Status system for EU nationals in the UK.

Local elections

A UK House of Commons Library briefing last year confirmed that "EU citizens resident in the UK may also vote in local elections as long as they meet the age and residency requirements." This applies to people who are 18 or over and live in England, Scotland, Wales and Northern Ireland.

Comprehensive Sickness Insurance – not needed!

The EU Freedom of Movement Directive Directive 2004/38) and subsequent EU regulations allowed member states to require EU nationals living in their territory to have "Comprehensive Sickness Insurance" cover in order to qualify for certain categories of permanent residence or to access state benefits there.

In many EU countries, residents pay a monthly contribution to a state body or to a private healthcare insurance scheme, which is usually highly regulated. In some countries this system is heavily subsidised and contributors to the system often pay a nominal amount, especially if they are low earners, students or among the unemployed.

The UK doesn't have such an arrangement, of course. Healthcare is provided by the NHS, free at the point of need. The lack of a bureaucracy to collect monthly premiums and process claims from millions of people means there's more to spend on actual healthcare.

This led to an anomaly. How could EU nationals in the UK, when it was in the EU, sign up to the NHS if no mechanism to do so existed? With its usual mean-spiritedness towards foreigners, the UK authorities insisted that EU nationals in the UK sign up for "Comprehensive Sickness Insurance" - available very expensively on the free market.

So EU nationals living in the UK as students or "self-sufficient persons" (the self-employed), as well as their families, had to get eye-wateringly pricey private health insurance in order to get permanent residence, to retain their "worker" status or to access state benefits or housing benefit. Many were deterred by this from claiming benefits at all. Some were denied student loans, lost protection against deportation or were prevented from obtaining citizenship because they couldn't afford this pricey private healthcare for themselves and their families.

The issue frequently came up at tribunals in the UK. These frequently ruled that the availability of NHS treatment did not meet the EU requirement for healthcare insurance. The European Commission ruled in 2012 that "this breaches EU law", and the UK ignored this.

Over the years the number of EU nationals affected became "mind-bogglingly massive", according to barrister Colin Yeo's Free Movement blog. A case on behalf of "VI and son" in Northern Ireland was brought during the Transition Period, after the UK left the EU. Its outcome is still binding on the UK under Article 89 of the Withdrawal Agreement.

On 10 March the Court of Justice of the European Union ruled on Case C-274/20 - VI and son vs. HMRC. The Court ruled that the plaintiffs were "affiliated... to the United Kingdom's public sickness insurance system offered free of charge by the National Health Service" and that this was "within the meaning of" the Directive requirement for EU nationals to have health cover in another Member State.

So huge numbers of EU nationals (and their families) have wrongly been denied benefits, permanent residence and a lot more. Thousands of students and others had been compelled to take out unnecessary private health insurance.

Can these people now sue? Claims against the UK based on infringement of EU laws ended with Brexit. But the Withdrawal Agreement still allowed claims to go ahead if they were based on "facts that occurred before the end of the Transition Period", with a two-year limit after Transition ended. As this case was brought during the Transition, those affected now have until 31 December 2022 to get their claims filed.

However, there is better news for those EU nationals now in the UK on Pre-Settled Status (see below) who are struggling to provide evidence of their eligibility for an upgrade to Settled Status. With the requirement for pricey private health insurance now ruled unlawful, routes to getting Settled Status that previously required this - such as being in the UK as a student or as a "self-sufficient person" (working self-employed in the UK) - may now become easier.

Pre-settled Status woes

There remain issues with the Settled Status system for EU nationals in the UK, as noted in How Secure is Pre-Settled Status for EU Citizens After Brexit?, a report by the Migration Observatory at the University of Oxford published in March.

Of the roughly 5 million EU nationals in the UK, some three million have been granted the more stable Settled Status. Around two million have the more precarious Pre-Settled Status.

In theory these two million people can all upgrade to full-on Settled Status - when they fulfil the stricter criteria, such as five years' continuous residence in the UK. But the report identifies complexity and design faults in the system, especially confusion around "permitted absences" from the UK that make upgrading from Pre-settled Status to Settled Status a challenge. So some two million UK residents potentially risk losing their right to live and work here.

This is particularly relevant to London Freelance Branch, since Italian nationals are a demographic well-represented in its membership. Of all the EU nationals in the UK on 31 December last year who have Pre-Settled Status, Italians are the second-biggest group, after Romanians.

There are 290,000 Italians in the UK with the less-stable Pre-settled Status - that's just over half of all Italians settled in the UK who do not also have British citizenship. Some 43 per cent of Italians with Pre-settled Status are of "working age" – over 18 and under 65. (And yes, we know from a previous New Members' Meeting that in 2019 there were Romanian nationals in LFB too.)

Factors making the upgrade from Pre-settled Status to Settled Status tricky include the complexity of a "double application" – applicants with Pre-Settled Status have to apply all over again for Settled Status, which has stricter criteria and a "more onerous" online application form. There is confusion about what "absences" are allowed from the UK when calculating whether the Settled Status criterion of five years' "continuous" UK residence has been met. With numerous EU nationals having recently been stranded in their country of origin by covid travel bans, this issue will affect many.

Both the application and the "document" that holders of (Pre-)Settled Status get are digital-only. It's often hard even to keep track of your current status, and of when it's due to run out. It's often difficult to prove your eligibility: factors such as long absences or the breakdown of a relationship with a partner who is a UK or EU citizen can suddenly affect your status.

Caseworkers who help vulnerable people with applications say the translation and interpretation services they rely on are already limited. Home Office funding for these is due to cease at the end of March 2022, so there will be even less support in this area.

As Settled Status drops off the news agenda now that the original 30 June 2021 deadline has passed, there will be less awareness among EU nationals with Pre-Settled Status about the need to apply for Settled Status. Nor is it clear whether the Home Office plans to send automatic alerts to Pre-Settled Status holders about the need to apply for an upgrade to Settled Status.