EU Rights Clinic challenges France’s systematic failure to comply with EU residence formalities

In a complaint submitted today to the European Commission, the EU Rights Clinic has challenged France’s breach of EU law in its duty to issue residence documents to EU citizens.

The complaint points to the systematic failure of French municipal authorities to issue residence documentation to EU citizens. The complaint is being raised in view of the risks posed to the ability of British citizens to continue living in France after Brexit.

The complaint contains details of over 20 individuals lawfully residing in France who have been refused residence documents contrary to EU law. Under EU law, the national authorities are required to issue residence documentation to those EU citizens who request them. The documentation should be valid for five years or more. However, the individuals concerned were either wrongfully issued with a residence card valid or with a reduced period of time, or they were simply turned away.

The complaint reveals various practices among local municipalities, pointing to multiple interpretations of French rules and confusion among French officials. While France does not require its EU citizens to register, residence documents allow EU citizens to prove their lawful residence in the country and apply for permanent residence after five years.

This is particularly important in the context of Brexit, because British citizens run the risk of being refused residency after the UK leaves the EU if they cannot prove their lawful residence in an EU country. Additionally,  British citizens are often told that their case will not be treated until after Brexit. However, EU law remains effective for as long as the United Kingdom remains a Member State of the EU.

Such failures also impact British citizens’ entitlement to access other public entities such as job centres and child benefit offices, as well as their ability to carry out administrative procedures such as registering a vehicle.

The EU Rights Clinic has demanded that the European Commission take robust enforcement action against France to ensure it complies fully with EU law. A petition will also be lodged in parallel before the European Parliament.

Read the Executive Summary of the complaint here

The EU Rights Clinic is a collaboration between ECAS and the University of Kent in Brussels. As part of the ACT for Free Movement project, funded by EPIM, the EU Rights Clinic is investigating cases of breaches of free movement rights in EU Member States.

Deal or no deal: the rights that will be lost with Brexit

This article first appeared on Europe Street News © all rights reserved by Europe Street News.

Deal or no deal? That is the question. Despite the promise that nothing will change for them, both EU nationals living in the UK and British residents in the rest of the EU are to lose out from Brexit. The situation could even be worsened if there is no agreement on the terms of the UK’s departure from the European Union. The failure of talks at the EU summit in Salzburg this week did not offer assurances in this regard, leaving people whose status depends on EU treaties in a troubling state of uncertainty.

This is an overview of what can happen to the rights of 3.7 million EU citizens who are living in the UK and 1.2 million British citizens who are living in another EU country after Brexit. As inconceivable as it was before the EU referendum, the overview shows the rights preserved and lost under the draft “deal” published in March and in the event of “no deal”.

In short, the right to family reunion, the ability to exercise professional activities across countries and to participate in political life, will be weakened under the draft withdrawal agreement. But in the case of “no deal”, there will be even heavier consequences in terms of potential loss of acquired pension rights, free or subsidised healthcare when travelling and ability to provide services across borders.

Free movement rights

Entry without visa. People covered by the withdrawal agreement will continue to move across EU and UK borders without a visa and their non-EU family members will be issued visas for free through an accelerated procedure. In the event of “no deal”, UK nationals who hold a residence card from any EU country will be able to travel within the EU without the need for a visa. Similarly, EU nationals who hold settled or pre-settled status in the UK will not need a visa to enter the country. However, non-EU family members will no longer benefit from visas free of charge.

Residence, work and study. The rights to reside, work and study in the current country of residence are preserved in the withdrawal agreement. However, EU nationals in the UK will have to apply for settled status (also reported here) and be subject to criminality checks, instead of benefing from the automatic entitlement to residence deriving from EU treaties. EU countries may also introduce similar requirements for British residents, but no Member State has so far expressed an intention to do so. The requirement for non-economically active citizens to have “comprehensive sickness insurance” to attain permanent residence will not apply for EU citizens seeking settled status in the UK, but has been carried forward for UK nationals living in the EU. A “no deal” is not expected to reverse the UK decision to introduce the new settled status for EU nationals (also reported here), but domestic immigration laws will apply to British citizens in EU countries, instead of the more generous rules under the withdrawal agreement.

Family reunion. Under the withdrawal agreement, family members (including close relatives, partners in a durable relationship, and other persons whose presence is required, such as carers) irrespective of their nationality, can join people covered by the withdrawal agreement in the country of residence, as long as the relationship existed before 31 December 2020 (the end of the Brexit transitional period). Future family members (except children) will face tougher immigration laws if their relationship begins after 31 December 2020. In the event of “no deal”, family members of EU citizens in the UK will benefit from the new settled status only if they are already in the UK. British citizens living in the EU will have to comply with the family reunification rules of the EU country of residence.

Non-discrimination. People covered by the withdrawal agreement will continue to enjoy equal treatment with nationals as regards employment, working conditions, university tuition fees and all other social and tax benefits. In the event of “no deal” the right to non-discrimination will be governed by national law. EU citizens in the UK who obtain the new settled status should be able to benefit from full access to work and public funds, as is presently the case for persons with ‘indefinite leave to remain’ (the permanent residence status for non-EU nationals). The situation of EU citizens with pre-settled status is unclear. By becoming ‘third country nationals’ under EU law, British citizens in the EU will be able to benefit from some more limited rights to non-discrimination.

Continuous free movement in the EU. British nationals in the EU will lose this right, unless it is negotiated as part of the future EU-UK relation. As ‘third country nationals’ who are long-term residents, the Schengen rules would not provide them an unfettered right  to move to another member state. EU citizens will obviously maintain the right to move freely within the EU.

Resuming residence after a period abroad. People covered by the withdrawal agreement will be able to leave the host country for up to five years without losing their residence status. This is more generous than the two years currently allowed under EU law, but is not comparable to the life-long right provided by free movement rules. An absence of more than five years means protection under the withdrawal agreement is lost and resuming residence would require complying with national immigration laws. A “no-deal” is not expected to reverse the decision to introduce the new settled status and allow an absence of up to five years for EU citizens in the UK. The right for UK nationals in the EU would be covered by Schengen rules or by national rules for countries not part of the Schengen area. The Schengen rules allow long-term residents an absence of 12 months.

Return to home country with non-EU family members. The right of EU and UK nationals to return to the home country and take up residence with their non-EU family members is not protected in the withdrawal agreement, although it has been recognised by a high profile ruling of the European Court of Justice. This means that a British national having resided in the EU will no longer be able to claim the automatic benefit of EU residence for non-EU family members, if they return to the UK after 31 December 2020. Similarly, more onerous rules may apply for EU citizens with non-EU family members returning from the UK, which will be at that point a ‘third country’. “No deal” would mean this right will no longer exist from 30 March 2019 (for British citizens returning home, possibly at a later date whenever the UK authorities revoke the Immigration (EEA) Regulations 2016).

Social security rights

Social security and pension coordination. People covered by the withdrawal agreement (including EU nationals who worked in the UK in the past, or vice versa) will continue to benefit from the current rules on social security coordination, including the aggregation of contributions for state pensions. The indexation of British pensions paid to residents of EU countries will continue. In the event of a “no deal”, UK nationals in the EU and EU nationals in the UK could benefit from protections provided by bilateral agreements or by the Council of Europe’s Interim Agreements on social security. But these protections are more limited, more complex and do not cover all EU countries, potentially putting at risk the acquired rights to receive a state pension for thousands of past and present mobile citizens.

Export of social security benefits to other EU countries. The withdrawal agreement preserves the exportability of benefits. In the event of a “no deal”, a similar situation to social security and pension coordination will apply.

Healthcare. The right to healthcare forms part of the protections of social security rights under the withdrawal agreement. The European Health Insurance Card (EHIC), which allows necessary care when travelling throughout the EU and the UK, will remain in use for people covered by the withdrawal agreement. But in the event of “no deal”, EHICs issued in the UK will no longer be accepted in EU countries and vice-versa.

Work rights

Recognition of professional qualifications. Under the withdrawal agreement, the recognition of qualifications that enables UK and EU professionals to practise across borders without having to re-train remains in place. This concerns all regulated professions, such as engineers, architects and nurses. However, there are some limitations regarding lawyers practicing under their home professional title (e.g. a solicitor qualified in Scotland who works in Paris without having converted to a French ‘avocat’). Another limitation applies to British citizens in Europe who will lose the right to recognition of their professional qualifications beyond their host country. The situation of frontier workers is unclear. The recognition of professional qualifications gained after Brexit will depend on the future trade relation. In the event of “no deal”, the arrangements concerning the recognition of professional qualifications would no longer apply. However, professional qualifications held by EU citizens in the UK would continue to be recognised until the UK regulations which give effect to EU rules (under the EU withdrawal act) are repealed or amended.

Establishing business. The right of EU citizens living in the UK to establish businesses is protected under the withdrawal agreement, as well as the rights of UK nationals to establish a business in their country of residence. The right of UK nationals to establish a business in another EU country after Brexit, however, will depend on the future trade relation. In the event of “no deal”, UK nationals living in the EU would be subject to the national rules of the country where their business is set up, knowing that a business set up in an EU country is considered an EU entity. EU citizens living in the UK would be free to establish themselves in other EU countries.

Cross-border services. The right to provide cross-border services (that is offering services to people or companies based in another country) will depend on the future trade relation. This affects both EU citizens with an established business in the UK and UK nationals with a business in their country of residence. In the event of “no deal”, the right to provide cross-border services would cease to exist.

Judicial rights

Referral to the European Court of Justice. Under the withdrawal agreement, EU citizens in the UK will retain the possibility to refer cases on the interpretation of their rights to the European Court of Justice for a period of eight years following the end of the transitional period. The European Commission will monitor the application of the withdrawal agreement in the EU, while an independent authority will be established to fulfil this role in the UK. This body will have the power to receive complaints from EU citizens living in the UK and their families, conduct inquiries on its own initiative and bring legal actions before the UK courts to seek remedy. But a joint committee supervising the implementation of the agreement will decide, eight years after the end of the transition period, whether to abolish this authority. These judicial safeguards would no longer benefit EU citizens in the UK in case of a “no deal”, but UK citizens in the EU would continue to be able to refer to the European Court of Justice.

Political rights

Participating in municipal elections. The right to vote and stand as candidates in municipal elections has not been preserved by the withdrawal agreement because it is linked to EU citizenship, which will be lost by British nationals once the UK leaves the EU. A “no deal” would not change this situation. The British government said it intends to negotiate the right to vote in municipal elections bilaterally with EU member states. Some countries, like Sweden, guarantee the right to vote in municipal elections to long-term residents regardless of their nationality. British citizens who have resided out of the UK for more than 15 years also lose their right to vote in the UK, which means they could be left with no voting rights at all depending on the country where they live. EU citizens in the UK may be able to vote in municipal elections in their country of origin, depending on the national electoral framework. EU directives do not cover the right to vote in general elections.

Participating in European elections. Deal or no deal, British nationals will lose the right to elect members of the European parliament and stand as candidates in European elections. EU citizens in the UK will maintain this right depending on the rules in their home country, but they will no longer have the choice of voting in the local British constituency, thus reducing the proximity to their representatives.

Start and participate in European Citizens’ Initiatives (ECIs). British nationals will lose the right to submit and take part in this form of petition to call on the European Commission to make legislative proposals. EU nationals residing in the UK will only be able to take part in ECIs in their home country if this is permitted under the national rules giving effect to ECIs.

Petition EU institutions. Any EU citizen and any person residing in an EU country can petition the European parliament, submit complaints to the European Commission, request access to EU documents or, in cases of maladministration by EU institutions, complain to the European Ombudsman. British residents in the EU will be able to continue to do so, as well as EU citizens residing in the UK. Nothing will change in this respect in the event of “no deal”.

Consular protection in third countries. British citizens will lose the right to seek consular protection from other EU states in third countries. EU citizens will continue to benefit from consular protection from other EU states in third countries where their home Member State has no consular presence. A “no deal” would not affect these rights.

Other issues

Other personal rights. There are various other personal rights which protect consumers and workers as part of the EU’s single market rules. These include employment rights, such as working time, parental leave or health and safety conditions at work; consumers rights, such as guarantees and returns for goods, compensation for travel delays or the ban on international payments surcharges; the mutual recognition of driving licenses; and protections related to financial services, for example on the portability of private pensions or minimum terms of insurance cover. All these rights will depend on the future trade arrangements between the UK and the EU.

Application to the EEA. The EU’s free movement rights apply also to citizens of Norway, Iceland and Liechtenstein, as they are members of the European Economic Area and form part of the single market. The EU withdrawal agreement does not cover these countries but the UK is negotiating citizens’ rights separately with them.

The rights of Irish nationals. Irish citizens will be subject to a separate, and more favourable, regime that was already in place before the UK and Ireland joined the EU.

Future rights of UK nationals in the UK. The situation of UK nationals who move to an EU country after Brexit and the future rules governing the rights of EU citizens who move to the UK are yet to be agreed and are therefore not covered here.

Claudia Delpero in collaboration with Anthony Valcke, Founder and Supervising Solicitor of the EU Rights Clinic

This article first appeared on Europe Street News © all rights reserved by Europe Street News.

Once again Sweden fails to comply with EU rules, says EU Rights Clinic.

The EU Rights Clinic has again referred Sweden to the European Commission for its failure to abide by EU law.

In a second complaint to be filed against Sweden in under a year, this case relates to the failure of the Swedish Migration Agency (Migrationsverket) to issue residence cards to non-EU family members of EU citizens within the deadline of 6 months laid down by EU law.

The evidence collated by the EU Rights Clinic and its partner Crossroads in Göteborg shows that it can takes up to two years for the Migrationsverket to process such applications for residence cards submitted by non-EU family members of EU citizens.

The delay in issuing residence cards is affecting the ability of non-EU family members to lead a normal life in Sweden. The affected family members cannot prove their right to work, they are unable to leave Sweden while awaiting their residence card, and the state of uncertainty caused by excessive delays is leading many to anxiety and even depression.

In previous cases involving similar delays in processing applications in Ireland, Spain and the UK, the Commission opened official infringement cases against these Member States, which eventually led those countries to take the necessary measures to comply with the six-month deadline.

The EU Rights Clinic is urging the Commission to take similar robust enforcement action against Sweden, including launching formal infringement proceedings before the EU Court of Justice in the event Sweden fails to take swift action to remedy the situation.

You can read our executive summary of the complaint.

If you or your family member have suffered similar delays in obtaining your residence cards, or if you would like to lend your support to the EU Rights Clinic’s complaint, please let us know using the following form.

The EU Rights Clinic is a collaboration between ECAS and the University of Kent in Brussels. As part of the ACT for Free Movement project, funded by EPIM, the EU Rights Clinic is investigating breaches of free movement rights in EU Member States. This complaint was submitted in cooperation with Crossroads of the Göteborgs Kyrkliga Stadsmission. Together, the EU Rights Clinic and Crossroads Göteborg have received 20 complaints from affected EU citizens and their family members.

BACKGROUND

  1. According to EC Directive 2004/38, EU citizens and their family members – whatever their nationality – have a right to reside in any EU country. Where family members do not possess the nationality of an EU country, they are required to apply for a residence card. This residence document should be issued to them within a deadline of six months which is set by EU law and also contained in Swedish law.
  2. The delays in issuing residence documents to family members is made apparent on the website of the Migrationsverket, which contains information on the average time it takes for applications for residence documentation to be processed. The website confirms that it can take anywhere between 16 to 24 months for the Migrationsverket to take a decision on applications for residence cards made non-EU family member of a EU citizen.
  3. The evidence collated by the EU Rights Clinic and its partner Crossroads of the Göteborgs Kyrkliga Stadsmission illustrates the systematic failure of the Migrationsverket to meet the six-month deadline in respect of any kind of application for residence documentation made by non-EU family members. The delays have been reported in several publications since 2013.
  4. The obligation to issue residence cards and permanent residence cards to non-EU family members within six months is contained in Articles 10 and 20 of EC Directive 2004/38. These obligations have been correctly transposed by Swedish law, as stated in Chapter 3a Section 7 of the Swedish Alien Ordinance (Utlänningsförordning 2006:97). However mere transposition into national law is not sufficient for meeting an obligation to implement a directive under EU law; the objective prescribed must be met both in law and in fact.
  5. In a case involving delays in Spain in 2003, the Commission brought infringement proceedings before the Court of Justice which resulted in a ruling by the Court that the Spanish authorities had failed to fulfil their obligations under EU law (Case C-157/03).
  6. More recently, in 2009 and 2011, the Commission launched formal infringement proceedings concerning extensive delays in the issuance of residence documentation by the Irish and UK authorities. The Commission’s actions resulted in the elimination by the UK and Irish authorities of delays in processing applications for residence documents submitted by EU citizens and their families. Following the Commission’s intervention, the UK authorities put in place a comprehensive plan to reduce the backlog of cases, including the significant expansion of the number of caseworkers allocated to handle EU residence applications, as a result of which the time for handling new applications was returned to the appropriate six-month deadline required by Directive 2004/38.

EU Rights Clinic Petition Urges the European Parliament to Ensure Stronger Protection of Citizens’ Rights After Brexit

The EU Rights Clinic and 80 signatories have submitted a Petition calling on the European Parliament to take immediate action to address specific gaps and omissions in the draft Withdrawal Agreement concerning the protection of citizens’ rights in connection with Brexit.  **You can register your support for the Petition here.**

This follows up on our letter to EU Council President Donald Tusk which called upon the Council to instruct the European Commission to address those matters related to citizens’ rights which were not covered by the interim deal that concluded the first phase of negotiations in December 2017. Unfortunately, the Council has

In its response, the Council’s General Secretariat has merely indicated that “[t]he provisional agreement on phase one issues reflected in the Joint Report of 8 December 2017, contains clear commitments relating to citizens’ rights that will allow citizens and their family members to continue to live, work and study as they did before the UK’s withdrawal from the EU.

We have since enlisted the support of several MEPs at the European Parliament. Following a Written Question tabled by Julie Ward MEP, the reply received from Commission President Juncker simply stated that Surinder Singh and Zambrano family members were not covered by the Withdrawal Agreement.

Given the lack of progress in ensuring citizens rights are fully protected the EU Rights Clinic – together with 80 other signatories – has now submitted a Petition to the European Parliament.

In the Petition we have requested the European Parliament’s Petition Committee to hold a hearing as a matter of urgency and to issue a short motion for a Parliamentary resolution calling on the Council and the Commission to remedy the gaps and omissions in the draft Withdrawal Agreement.

Surinder Singh family members and Zambrano carers still excluded from the Draft Withdrawal Agreement

The draft Withdrawal Agreement still fails to address the rights of those family members of both UK and EU citizens who have returned to their home country after having resided in another EU Member State (Surinder Singh family members) during the transitional period.

Moreover, so-called Zambrano carers (non-EU parents of British children living in the UK) are also excluded from the list of citizens eligible for the UK’s proposed new EU settlement scheme.

Although the EU Rights Clinic received assurances from the UK Home Office that Surinder Singh and Zambrano family members would be covered by the “settled status”, the Statement of Intent released on 21 June 2018 regrettably does not address their situation in a satisfactory manner.

Clarity needed for inactive EU citizens and their family members

It is also essential for the Withdrawal Agreement to reflect the commitments made by the UK government regarding residence rights. While the UK government has made commitments on the matter – such as waiving the requirement for holding comprehensive sickness insurance – these need to be the subject of formal binding provisions in the draft Withdrawal Agreement.

The absence of such commitments from the draft Withdrawal Agreement is a likely source of anxiety and distress for EU citizens in the UK due to the uncertainty surrounding their binding effect on the UK government. Their inclusion in the Withdrawal Agreement would go a significant way to allay the fears of EU citizens and their family members in connection with their right to remain in the UK after Brexit.

Appeal rights need to be bolstered

The Withdrawal Agreement only provides for rights of appeal in connection with residence rights. Yet the scope of citizens rights covered by the Withdrawal Agreement is much wider and covers workers’ rights (Articles 22-24), professional qualifications (Articles 25-27) and social security rights (Articles 28-31). The Withdrawal Agreement needs to ensure such personal rights also carry an explicit right of appeal.

In addition, the Withdrawal Agreement must preserve access to the EU’s assistance services – SOLVIT and Your Europe Advice – for the benefit of EU citizens living in the UK and UK nationals living in EU 27, together with their family members, at the very least for the period of 8 years following the end of the transitional period specified in Article 151.

You can find the Executive Summary of the submitted Petition here.

You can register your support for the Petition here.

Appel à participation: Actors4Freemovement

C’est quoi ACT4FREEMOVEMENT ?

La campagne ACT4FreeMovement vise à transposer les décisions de la Cour de Justice Européenne sur la libre circulation des personnes dans des personnages théâtraux et à créer un cycle de sessions de formation théâtrale de trois demi-journées où les participants apprendront leurs droits au travers de jeux de rôles. Les participants seront initiés au langage et aux outils techniques légaux, ce qui les aidera à comprendre leurs droits à la liberté de circulation et de résidence et comment ils peuvent être appliqués.

Quel thème sera aborder ? 

La campagne de Bruxelles sera centrée sur les droits des citoyens non européens mariés avec des citoyens européens et, sur les parents européens ou non européens d’enfants nés sur le territoire belge. Nous discuterons des droits et des obstacles avec le directeur juridique de la EU Rights Clinic – un avocat spécialisé en la matière – et, de manière interactive, au travers d’une brève initiation théâtrale. Les participants seront appelés à retracer le parcours et la lutte menés par la famille Ruiz Zambrano, depuis leur arrivée en Belgique jusqu’à la décision finale de la Cour. Les participants seront introduits au fonctionnement du système juridique belge et apprendront les réflexes à avoir dans l’évolution de leur séjour.

Quand et où ? 

La campagne se déroulera en trois demi-journées en français (connaissance de base nécessaire)

23 Mai 2018 : 14h00 – 18h00
30 Mai 2018 : 14h00 – 18h00
5 Juin 2018 : 14h00 – 18h00

Lieu: GC Elzenhof : Av. De la Couronne 12 – 14 – 16 – 1050 – Ixelles – Bruxelles 

Qui peut participer ?

– Des citoyens non européens mariés avec des citoyens de l’UE ;
– Parents (UE ou non UE) d’enfants nés sur le territoire Belge ;
– Les citoyens de l’UE et de pays tiers intéressés à connaître leurs droits de résidence en Belgique ;
– Membres d’associations travaillant avec des migrants.

Comment participer ? 

Pour s’enregistrer veuillez envoyer votre nom, adresse email et votre numéro de téléphone à eleonora.nestola@yahoo.it

Comprehensive Sickness Insurance in the UK: How do you prove past healthcare coverage by another Member State’s social security system?

As the UK’s withdrawal from the European Union approaches, EEA nationals and their family members have been applying for permanent residence in increasing numbers.

In 2016, over 90,000 applications for permanent residence were submitted by family members and in 2017 this more than doubled to almost 215,000 applications (Home Office, Immigration statistics, October to December 2017).

However, the rate of rejection of applications was relatively high: in 2016 29% of applications were either refused or declared inadmissible, whereas in 2017 the rate of rejection was lower at 21%.

Unfortunately, we do not have reliable statistics to determine what proportion of these refusals is due to applicants not having held comprehensive sickness insurance during their period of residence in the UK.

Despite having made a specific request to the Home Office to publish this information, our request was turned down because the “requested data is not recorded for our statistical purposes thus; (sic) we cannot provide information on any of the above questions” (Home Office response to the EU Right Clinic’s FOIA request No 35185, 7 May 2015).

However, we know from the evidence submitted to the Brexit Committee of the House of Commons that the absence of comprehensive sickness insurance constitutes one of the main reasons for the Home Office to reject applications for residence documentation by EEA nationals and their family members (Exiting the European Union Committee, The Government’s negotiating objectives: the rights of UK and EU citizens (HC 2016-17, 1071) para 67).

So how can EEA nationals and their family members prove they have held comprehensive sickness insurance during their residence in the UK when they apply for permanent residence?

The Home Office’s Modernised Guidance “EEA nationals qualified persons”  sets out what documents are needed for permanent residence applications:

For applications for a document certifying permanent residence or a permanent residence card

They must provide one of the following documents or a combination of these documents covering their 5 continuous year’s residence in the UK:

•  a comprehensive private medical insurance policy document

•  a valid European Health Insurance Card (EHIC) issued by an EEA member state other than the UK (or its predecessor form E111)

•  form S1 (or its predecessor forms E109 or E121)

•  form S2 (or its predecessor form E112)

•  form S3

The definition of CSI [comprehensive sickness insurance] does not include:

•  cash back health schemes, such as:

o dental

o optical

o prescription charges

•  travel insurance policies

•  access to the UK’s NHS”

However, these documents are not the only way that EU citizens and their family members can prove they held comprehensive sickness insurance.

**Please note that, in practice, the Home Office’s practice means it does not always accept past coverage by another Member State’s healthcare system as evidence of comprehensive sickness insurance. You may therefore need to be prepared to appeal against any refusal by the Home Office to accept evidence of past coverage. In all cases we invite you to submit a copy of this blog post in your application**.

Another way to prove comprehensive sickness insurance includes past coverage under your home country’s social security system.

This will often benefit students who came to study in the UK and who remained covered by their home country’s social security system, but it might include others, such as those in receipt of an exportable benefit from another EU country or EEA state.

Past coverage under your home country’s social security system can be proved in a number of different ways that differ according to national practices:

•  Italian citizens who came to the UK to study and did not register with AIRE (Anagrafe Italiani residenti all’estero): they can prove this by obtaining a letter confirming their former healthcare coverage from their local healthcare institution (azienda sanitaria locale), if possible with a print-out confirming the dates when they held an Italian Healthcare Insurance Card (Tessera Europea di Assicurazione Malattia).

•  Bulgarian and Romanian citizens may be issued Structure Electronic Document S041 by their social security institution back home which confirms that their citizens remained covered by their home country’s social security system for a specified period of time and therefore were entitled to receive healthcare in the UK at the expense of their home country during that period of time – if you have been issued SED S041, you should download our practice note on SED S041 and include a copy in support of your application for permanent residence.

•  Dutch citizens may also be issued with the old Form E104 , which is a certificate showing periods of previous coverage by their home country’s social security system for a specified period of time and therefore were entitled to receive healthcare in the UK at the expense of their home country during that period of time – if you have been issued Form E104, you should download our practice note on Form E 104 and include a copy in support of your application for permanent residence. [link to document]

Separately, some EEA citizens may be able to invoke the existence of reciprocal arrangements concluded by the UK with individual Member States. The basis for this claim is the ruling by the Court of Appeal in Ahmad v Secretary of State for the Home Department [2014] EWCA Civ 988 in which Arden LJ held “[53] … It is common ground that if there were reciprocal arrangements with the EEA national’s own state that would be sufficient to constitute comprehensive insurance cover.” This would only benefit the following categories:

•  German citizens who can invoke Article 2 of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Federal Republic of Germany concerning the Waiving of the Reimbursement of the Costs of Benefits in Kind provided for Sickness, Maternity, Accidents at Work and Occupational Diseases, of Unemployment Benefits and of the Costs of Administrative and Medical Controls (Bonn, 29 April 1977), which waives any costs arising from medical treatment provided under the NHS to German citizens in the UK:

“(1) Reimbursement by the competent institutions of the Contracting Parties of the costs of benefits in kind for sickness, maternity, accidents at work and occupational diseases in accordance with paragraph 1 of Article 36 and paragraph 1 of Article 63 of Regulation (EEC) No. 1408/71 [now paragraph 1 of Article 35 and paragraph 1 of Article 41 of Regulation 883/2004] and of the costs of administrative and medical controls in accordance with paragraph 1 of Article 105 of Regulation (EEC) No. 574/72 [now paragraph 1 of Regulation 987/2009] shall mutually be waived.”

•  In addition, some EEA nationals who arrived in the UK before their country joined the EU/EEA may be able to rely on the more favourable provisions of reciprocal arrangements that are contained in bilateral social security conventions that effectively waives the requirement to hold comprehensive sickness insurance. This results from the so-called “Rönfeldt principle” laid down in the case law of the EU Court of Justice in Case C‑227/89 Rönfeldt EU:C:1991:52 and subsequent cases. This only benefits specific nationalities:

o   French nationals who were lawfully living in the UK before 1 January 1973 when the UK joined the EEC;

o   Portuguese and Spanish nationals who were lawfully living in the UK before 1 January 1986 when Portugal and Spain joined the EEC;

o   Icelandic and Norwegian nationals who were lawfully living in the UK before 1 January 1994 when Iceland and Norway joined the EEA;

o   Austrian and Finnish nationals who were lawfully living in the UK before 1 January 1995 when Austria and Finland joined the EU;

o  Czech and Slovenian nationals who were lawfully living in the UK before 1 May 2004 when the Czech Republic and Slovenia joined the EU.

In all cases, applicants should not forget to supply an English translation of any document which have been issued in another language.

The EU Rights Clinic is a partnership between ECAS and the University of Kent in Brussels. It helps EU citizens and their family members overcome problems they encounter when moving within the EU.

The EU Rights is grateful for the financial support it has received from the European Programme for Integration and Migration under its sub-fund on EU mobility.

Call for evidence: Residence card delays in Sweden

Are you the non-EU family member of an EU citizen living in Sweden?

Are you experiencing delays in receiving your residence card?

The EU Rights Clinic can help!

Under EU law, the Swedish authorities are required to issue residence documents within six months to the family members of EU citizens who come from a country outside the EU.

However, the reality is that the Swedish migration authority (Migrationsverket) is taking well over a year – sometimes even two years – to issue a residence card to non-EU family members.

As a result, family members are unable to lead a normal life: they cannot prove their right to work, they are unable to leave Sweden while awaiting their residence document, and the state of uncertainty caused by excessive delays can lead to anxiety and depression.

This undermines the right of free movement which EU citizens and family members are guaranteed under the EU Charter of Fundamental Rights.

The EU Rights Clinic have received several complaints from non-EU family members in Sweden and we have therefore launched a review to determine whether this is a systematic problem which merits a complaint to the EU institutions.

We are therefore calling upon all non-EU family members of EU citizens who are living in Sweden and who have been waiting more than six months to obtain a residence card from the Migrationsverket to contact us by email (eurightsclinic) and share their experiences.

If you or anyone you know have been waiting for more than six months to obtain a family member residence card (“uppehållskort för en unionsmedborgares familjemedlem”), please contact us by email (eurightsclinic).

All information received will be treated confidentially and will not be divulged without your explicit consent.

Tack så mycket!

The EU Rights Clinic

The EU Rights Clinic is a partnership between ECAS and the University of Kent in Brussels. It helps EU citizens and their family members overcome problems they encounter when moving within the EU.

The EU Rights is grateful for the financial support it has received from the European Programme for Integration and Migration under its sub-fund on EU mobility.

 

Brexit: EU Rights Clinic Calls for Further Protection of Citizens’ Rights in Second Phase of Negotiations

The EU Rights Clinic has submitted a letter to President of the European Council Donald Tusk calling upon the Council to instruct the European Commission to continue negotiations on citizens’ rights in the second phase of Brexit negotiations and to address those matters related to citizens’ rights which were not addressed in the interim deal that concluded the first phase of negotiations in December 2017.

Read our letter to President Donald Tusk – you can add your name as a signatory to our letter here.

Acquired rights absent from withdrawal agreement

Following correspondence with the Commission’s Article 50 Task Force in December 2017, the EU Rights Clinic has received written confirmation that the acquired rights of certain family members and primary carers of children, who currently enjoy rights of residence, work and equal treatment under EU law were not included in the interim deal on citizens rights that was reached on 8 December 2017 and which led to conclusion of the first phase of Brexit negotiations.

Based upon statements made in the Council’s negotiating guidelines and directives, the Commission’s Essential Principles on Citizens’ Rights, as well as the European Parliament’s resolution on the state of play of negotiations with the United Kingdom, the EU Rights Clinic considers that the interim deal of 8 December 2017 fails to cover the entire spectrum of rights which all EU citizens and their family members presently enjoy under EU law.

In particular, the interim deal does not cover family members of EU citizens who have returned home after having resided in another EU country, as regards both those who have returned home before Brexit and those who will return to their home Member State after Brexit. In addition, the interim deal fails to address the rights of so-called Zambrano carers – namely non-EU parents of EU children living in their own country – and is silent on the continuing rights of free movement of UK nationals after Brexit. A number of technical aspects are also not sufficiently addressed in the interim deal.

Continued negotiations on citizens’ rights must be given priority

The EU Rights Clinic is seeking assurances from the Council that the directives which it will give to the Commission on the conduct of the second phase of negotiations will seek to enhance and extend the principles and commitments contained in the interim deal.

Priority should therefore be given in the second phase to the continuation of negotiations on citizens rights as a distinct strand that will cover the acquired rights of certain family members and primary carers of children, the continuing right of free movement of UK nationals in the EU27 after Brexit, the incorporation into the final terms of withdrawal of commitments made by the UK on “comprehensive sickness insurance” and “genuine and effective work”, and the inclusion of specific guarantees to ensure that restrictions on grounds of public policy or security comply with the principles of proportionality and equality, adhere to fundamental and human rights and provide for procedural safeguards and full rights of appeal.

Background

The letter to President Tusk has been submitted by the EU Rights Clinic on behalf of 60 signatories, including representatives of the3million and British in Europe, a number of Members of the European Parliament, leading legal experts and academics, as well as representatives of civil society organisations.

The EU Rights Clinic is a partnership between ECAS and the University of Kent in Brussels. It helps EU citizens and their family members overcome problems they encounter when moving within the EU.

If you are an EU citizen in the UK or a UK national in another EU country and are having problems exercising your EU rights, please contact us at rights.clinic@ecas.org.

The EU Rights is grateful for the financial support it has received from the European Programme for Integration and Migration under its sub-fund on EU mobility.

 

Brexit: EU Rights Clinic Calls For Rights of EU Citizens and Family Members to be Fully Protected

The EU Rights Clinic has submitted letters to the European Commission’s Brexit Task Force and the European Parliament’s Brexit Steering Group to express its concerns about the protections granted to the rights of EU citizens and their family members living in the UK following the recent agreement reached by the EU and the UK which concludes the first phase of negotiations on the terms of the UK’s withdrawal from the EU.

Urgent confirmation is sought from the European Commission and European Parliament that the rights of various categories of EU citizens and family members who currently enjoy rights of residence under EU law will be fully protected under the terms of the Withdrawal Agreement. The various categories of citizens and family members affected include:

  • family members of EU citizens who have returned home after having resided in another Member State as recognised by the Court of Justice’s ruling in Case C-370/90 Surinder Singh and subsequent cases;
  • primary carers of the children in education of migrant workers or former migrant workers under Regulation 492/2011 on the free movement of workers as recognised by the Court of Justice’s rulings in Case C-480/08 Teixeira and Joined Cases C‑147/11 and C-148/11 Czop and Punakova and subsequent cases;
  • primary carers of Union citizens having a right of residence in the EU citizens’ home country arising from the Court of Justice’s ruling in Case C-34/09 Ruiz Zambrano and subsequent cases.

The EU Rights Clinic also seeks assurances over previous commitments given by the UK concerning the interpretation of “lawful residence” under EU law and the waiving of all requirements for inactive EU citizens to have held “comprehensive sickness insurance” while living in the UK. The assurances should be the subject of specific provisions in the Withdrawal Agreement.

The letters have been submitted on behalf of 34 signatories representing various organisations providing legal assistance and advice to EU citizens living in the UK and British nationals living in the other 27 EU Member States.

If you are an EU citizen in the UK and are having problems exercising your EU rights, please contact us at rights.clinic@ecas.org.

Letter to the Brexit Task Force  –  Letter to the Brexit Steering Committee

The EU Rights is grateful for the financial support it has received from the European Programme for Integration and Migration under its sub-fund on EU mobility.

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Call for evidence: Deportation of EU Citizens and Family Members from the UK

Have you or your family received an order to leave the UK or been removed from the UK?

The EU Rights Clinic would like to hear from you!

Since the Brexit referendum, the numbers of EU citizens being detained and deported from the UK have risen significantly. This is despite statements by the UK authorities that there will be no change to the status of EU citizens living in the UK while the UK remains in the EU.

The actions of the UK authorities are in direct contravention of the right to move and reside freely under Directive 2004/38. Under the EU rules, Member States can only enforce the removal of EU citizens or their family members when they represent a genuine, present and sufficiently serious threat to public policy or public security. The EU Rights Clinic is therefore alarmed to hear of new reports of EU citizens who are being told to leave the country for reasons not connected to public policy or public security.

There have been several reports in the press of EU citizens and their families being threatened with deportation, being detained and being forcibly removed from the UK. The Home Office appears to be acting without consideration of the repercussions on remaining family members, including their financial livelihood and ties to the local community.

The EU Rights Clinic considers this systematic disregard for the right to free movement and protections against expulsion to be a major breach of EU law. We intend on raising the issue with the EU institutions. We would therefore like to hear from those who have been affected by the UK’s current pattern of threatening expulsion, detention, and deportation of EU citizens and their family members irrespective of whether they represent a threat to public policy or public security.

We are calling upon EU citizens and their family members have received an order to leave the UK and those who have been deported from the UK to contact us by email and share their experiences.

Please send your stories to eurightsclinic.

We hope to use this information to formulate a complaint to the EU institutions so they can take action to bring an end to the restrictive practices of the UK authorities.

All information received will be treated confidentially and will not be divulged without your explicit consent.

The EU Rights Clinic

The EU Rights is grateful for the financial support it has received from the European Programme for Integration and Migration under its sub-fund on EU mobility.

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