A new case from the Upper Tribunal, Ahmad v Secretary of State for the Home Department . This case highlights the crucial requirement of Comprehensive Sickness Insurance Cover (CSIC). This is an insurance policy for EEA nationals, that will cover the costs of most of the medical treatment they may require whilst in the UK.
Facts of the Case: Pakistani National Married to an EEA National
Mr Shakil Ahmad, is a Pakistani national who is married to an EEA national. His wife entered the UK to exercise her ‘treaty rights’ as a worker in April 2006. Mr Ahmad entered the UK lawfully to join his wife in the UK. Mr Ahmad’s wife stopped working and applied for a Tier 4 Student visa, which she was granted in 2009 to 2012. Mrs Ahmad failed to acquire a CSIC.
Mr Ahmad put forward the argument that he was working in the UK and had been paying for national insurance for five years. He then applied for a permanent residence card pursuant to Article 7 (2) of the Directive 2004/38/EC, which provides:
“2. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c).”
Mr Ahmad challenged that his wife should have comprehensive health insurance in the UK because he believed that she was entitled to use the NHS, therefore did not need to have private insurance cover.
Upper Tribunal Determination: Distinction between CSIC & NHS
The determination of the case at the Upper Tribunal was heard on 26 April 2013. It was found that entitlement to free NHS treatment does not meet the requirements under the Regulations and the Directives for an EEA student in the UK who is required to have CSIC.
“16…..There must be a material distinction between this requirement and the free entitlement to NHS treatment, otherwise the requirement permitted by the Directive and set out in Regulation 4(1)(d)(ii) would be entirely redundant, as such a person lawfully present in the UK already qualifies for free NHS. It is clear from the context of the Directive and the wording of the Regulations that what is contemplated is more than entitlement to NHS treatment.”
Mr Ahmad had prior case law working against him. The Upper Tribunal cited cases where the court held that free NHS treatment does not satisfy the requirement for CSIC. Cases such as W(china), which heard the appellant argue that the requirement for CSIC did not apply because healthcare was free under the NHS was dismissed.
In regards to Ahmad, Lady Justice Arden concluded:
“I would dismiss this appeal. If an appeal nationals enters the UK and is not involved in an economically active activity, for example because she is a student, her residence and that of her family members will not be lawful unless she has CSIC while she is a student in the five years following her arrival. Accordingly her family members will not be able to qualify for permanent residency in the UK. so Mrs Ahmad had to have CSIC while she was a student. This condition must be strictly complied with. The fact that she would be entitled to treatment under the NHS, and was thus at all times in substantially the same position as she would have been has she had CSIC, is nothing to the point. Her failure to take out CSIC put the host at risk of having to pay for healthcare at a time when the Ahmads had not then achieved that status of permanent resident and she was not economically active.”
Both Lord Justice Beatson and Lord Justice Sharp ‘agreed’.
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