Ahmad v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Beatson,Lady Justice Sharp |
| Judgment Date | 16 July 2014 |
| Neutral Citation | [2014] EWCA Civ 988 |
| Docket Number | Case No: C5/2013/1651 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 July 2014 |
[2014] EWCA Civ 988
COURT OF APPEAL
Arden, Beatson and Sharp LJJ
Mr S Kadri QC, Mr R Ahmed and Ms S Haji instructed by Burton and Burton Solicitors, for the Claimant;
Mr G Facenna instructed by the Treasury Solicitor, for the Secretary of State.
Abdirahman v Secretary of State for Work and Pensions; Abdirahman v Leicester City Council and Secretary of State for Work and Pensions; Ullusow v Secretary of State for Work and PensionsUNK[2007] EWCA Civ 657; [2008] 1 WLR 254; [2007] 4 All ER 882; [2007] 3 CMLR 37
Baumbast and R v Secretary of State for the Home DepartmentECAS (Case C-413/99); [2002] ECR I-7091; [2002] 3 CMLR 23; [2003] INLR 1
FK (Kenya) v Secretary of State for the Home DepartmentUNK [2010] EWCA Civ 1302
Kaczmarek v Secretary of State for Work and PensionsUNK [2008] EWCA Civ 1310; [2009] 2 CMLR 3
Lekpo-Bozua v London Borough of Hackney and AnotherUNK [2010] EWCA Civ 909
Liu and Others v Secretary of State for the Home DepartmentUNK [2007] EWCA Civ 1275; [2008] 1 CMLR 27; [2008] Imm AR 273
Okafor and Others v Secretary of State for the Home DepartmentUNK [2011] EWCA Civ 499; [2011] 1 WLR 3071; [2011] 3 CMLR 8
Pensionsversicherungsanstalt v BreyECAS (Case C-140/12); [2014] 1 WLR 1080; [2014] All ER (EC) 534; [2014] 1 CMLR 37
VP v Secretary of State for Work and Pensions [2014] UKUT 32 (AAC)
W (China) and X (China) v Secretary of State for the Home DepartmentUNK [2006] EWCA Civ 1494; [2007] Imm AR 326; [2007] INLR 115
Ziolkowski and Others v Land BerlinECAS (Case C-424/10); [2014] All ER (EC) 314; [2013] 3 CMLR 37; [2012] Imm AR 421; [2012] INLR 467
Charter of Fundamental Rights of the European Union, Article 35
Directive 2004/38/EC (‘the Citizens Directive’), Articles 7, 14, 16 & 24; Chapters III to VII; Recitals 9, 10 & 17
Directive 90/364/ EEC, Article 1
EC Treaty, Articles 12 & 18
Immigration (European Economic Area) Regulations 2006, regulations 4, 6, 13, 14 & 15
National Health Service Act 2006
National Health Service (Charges to Overseas Visitors) Regulations 2011
Regulation 883/2004, Article 4
Treaty on the Functioning of the European Union, Articles 18 & 21
European Union law — Citizens Directive — Article 7(2) of Directive 2004/38/EC — residence of family members of EEA nationals — EEA national student — Article 7(1) conditions not satisfied — failure to have comprehensive sickness insurance cover — entitlement to free national health service not a replacement for sickness insurance — unreasonable financial burden on host state — legitimate aim and proportionate
The Claimant, a citizen of Pakistan, had been living in the United Kingdom since 2006 with his wife, a Danish citizen who had entered the United Kingdom to exercise her treaty rights as a worker. His wife then ceased to be a worker and became a student. As such, under Article 7(1)(c) of Directive 2004/38/EC (‘the Citizens Directive’) she was required to have comprehensive sickness insurance cover (‘CSIC’), which she did not have.
The Claimant applied for a permanent residence card to confirm his right to reside in the United Kingdom pursuant to Article 7(2) of the Citizens Directive. He contended that his wife had satisfied the condition that she should have CSIC in the United Kingdom because she was entitled to use the National Health Service (NHS) and therefore did not need to have private insurance cover. The Secretary of State for the Home Department refused to grant a permanent residence card. The Upper Tribunal rejected the Claimant's contention and upheld the Secretary of State's refusal, holding that an entitlement to free NHS treatment did not satisfy the CSIC requirement under the Immigration (European Economic Area) Regulations 2006 (‘the 2006 Regulations’) and the Citizens Directive. The Upper Tribunal stated that there must be a material distinction between that requirement and the free entitlement to NHS treatment otherwise the requirement permitted by the Citizens Directive and set out in regulation 4(l)(d)(ii) of the 2006 Regulations would be entirely redundant, as what was contemplated was more than entitlement to NHS treatment.
The issue before the Court of Appeal was whether the conditions in Article 7 were to be interpreted under EU law in a dynamic way, so that it was enough if they were substantially or functionally fulfilled, or whether they were to be strictly interpreted on the basis that the right to a permanent residence card was a privilege which was not conferred unless there was strict and literal compliance with the conditions.
Held, dismissing the appeal:
(1) If an EEA national entered the United Kingdom and was not involved in an economically active activity, for example because she was a student, her residence and that of her family members would not be lawful unless she had CSIC while she was a student in the five years following her arrival. Accordingly her family members would not be able to qualify for permanent residency in the United Kingdom. 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 had she had CSIC, was nothing to the point. It was not enough to establish that CSIC could include public healthcare provision. The public healthcare system of the host state could not be included as that would defeat the object of the Citizens Directive: it would not relieve the host state of the cost of providing healthcare in the first five years (paras 36, 70 – 71).
(2) Under the United Kingdom's domestic social security legislation, EU citizens who were entitled to free NHS treatment were provided with exactly the same access to and standard of care as British nationals. Where a person had no right of residence under EU or domestic law, discrimination on the grounds of nationality was not prohibited: Abdirahnam v Secretary of State for Work and PensionsUNK[2007] EWCA Civ 657 applied. Moreover, although Article 24(2) of the Citizens Directive ensured equal treatment for EU citizens residing in a Member State in accordance with the conditions laid down in that Directive, it was clear that Article 24(2) could not be used to disapply Article 7(1)(c). The Claimant could not therefore rely upon his claim of discrimination as he had no right of permanent residence under the Citizens Directive (paras 28, 39, 42 – 43).
(3) The host state was required to apply the condition for CSIC in accordance with the general principles of EU law, including in particular the principle of proportionality. The period of time during which the CSIC must be held was short and there was no other way in that period of protecting the host state. Given that the legitimate aim being pursued, by the conditions in Article 7(1), was to ensure that no unreasonable financial burden was imposed on the host state, it was not disproportionate to require non-workers to hold sickness insurance and have sufficient resources, in order to guard against the possibility of them becoming a financial burden on the host state. It was clear that the conditions of Article 7(1) were to be interpreted strictly subject to the general principles of EU law, such as proportionality: Pensionsversicherungstalt v BreyECAS (Case C-140/12) applied (paras 44 – 51 and 72).
Lady Justice Arden:
[1] An EEA citizen, that is, a national of one of the member states of the EU or of one of the countries in the European Economic Area (‘EEA’), has valuable rights under the EU treaties, including the right to move to other states of the EU, and reside there. That right is also granted to his or her family members, including a spouse. The spouse may, if the EEA citizen fulfilled the required conditions, obtain a permanent residence card in the EEA state (‘host state’) to which she moves. The question in this appeal concerns the required condition that the EEA citizen should have had comprehensive sickness insurance cover (‘CSIC’).
[2] The appellant, Mr Shakil Ahmad, is a Pakistani national who has been living with his wife, Mrs Ahmad, a Danish citizen and therefore an EEA citizen, in the UK since August 2006. Mrs Ahmad entered the UK to exercise her treaty rights as a worker from April 2006. Mr Ahmad lawfully entered the UK to join her. Mrs Ahmad then ceased to be a worker. She was a student from about January 2009 to about July 2012. As such, she was required to have, but did not have, CSIC.
[3] This follows from Article 7(1)(d) of the Directive 2004/38/EC (‘the Directive’):
‘Article 7
1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:
…
(c) – are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or…’
[4] The provisions of the Directive have been implemented in the UK by the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). As the 2006 Regulations have to be interpreted so far as possible in conformity with the Directive (and no-one suggests that that is not possible in this case), the court has to interpret the relevant provisions of the Directive. In the circumstances I put a summary of the relevant provisions of the 2006 Regulations in the Annex to...
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