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EEA Nationals are allowed to remain in the UK whilst they are exercising their right to freedom of movement under the EEA Regulations. In order to have a right to remain in the UK however, EEA nationals must fit within one of the ‘qualified’ categories, which are:

  • Workers
  • Self-employed
  • Students
  • Self-sufficient persons
  • Jobseekers

Over the years, the EEA Regulations have been amended a number of times by the UK Government. These amendments appear to have reduced the rights that EEA jobseekers have to remain in the UK. This can be particularly important for EEA nationals who wish to apply for permanent residence. A permanent residence application requires a continuous period of 5 years ‘qualified status’ with no breaks, and EEA Nationals may need to show that they were present in the UK as a jobseeker to fill any gaps between work or studies.

Two recent decisions of the Court have helped to re-affirm the rights that EEA Nationals have to remain in the UK whilst job seeking.

In the case of KS v Secretary of State for Work and Pensions [2016] UKUT 269 AAC the Tribunal looked at the requirement within the regulations that a person provide ‘compelling evidence’ where they had been job seeking for more than 91 days. This requirement was controversial, as the previous case of Antonissen (C-292/89) had found that a person should be permitted a period of at least 6 months to find work and be treated as a ‘worker’ during that period. In KS the Court explained that the requirement to provide ‘compelling’ evidence however was just a requirement that on the ‘balance of probabilities’ a person establish that they have a genuine chance of finding work. That is the normal standard of proof applied in civil courts and therefore the use of the word ‘compelling’ does not introduce an additional hurdle for EEA nationals to jump through.

In the case of MB and others v Secretary of State for Work and Pensions [2016] UKUT 372 AAC the Court went on to consider the ‘compelling evidence’ test of genuinely searching for and finding work. The Courts confirmed that a person must have a chance of being engaged within a ‘reasonable period’ and that the test involved looking forward, including if the person was to obtain qualifications which would enable them to obtain work. There must be ‘real prospects’ of obtaining work and the burden is on the jobseeker to show this.

The Court’s decisions in these cases are re-assuring as the Courts have shown that they will continue to interpret EU law in a manner which continues to strongly protect free movement rights for EEA nationals and their family members.

Mark Lilley-Tams

For further information please contact Mark Lilley-Tams at markl@paragonlaw.co.uk.

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The Immigration Health Surcharge

Since 6 April 2015, most migrants seeking to enter or extend their stay in the UK must pay the Immigration Health Surcharge. The charge, which is one of a number of reforms contained in the Immigration Act 2014, is intended to be a financial contribution by migrants to the cost of their healthcare whilst in the UK. It has been set at £200 per year for those coming to work or join family members and £150 per year for students.

The surcharge must be paid by most people applying for limited leave and includes main applicants and dependents alike.  Visitors and those applying for indefinite leave are not required to pay nor are EEA nationals and their family members who are exercising rights of residence in the UK.

Having paid the surcharge, those migrants living in the UK will have the same access to the NHS as permanent residents.

Why has it come about?

According to the Home Office consultation paper which ushered in the reforms, the rules regulating migrant access to the NHS were too generous, particularly when compared with wider international practice, and have acted as a draw card to health tourists.

Countries such as Australia and the USA do require student and working migrants to purchase health insurance for the duration of their stay.  The government argues that the UK will not lose its competitive edge in this regard as private health insurance is much more costly than the surcharge and would also not cover pre-existing and chronic conditions.

The charge is also intended to remove some of the uncertainty over access to treatment which has been a difficult issue faced by health professionals who must decide who pays for treatment at the point of use.

Critics of the scheme claim that the government lacks figures about the actual costs that migration adds to the NHS and that working migrants who pay tax and national insurance contributions will effectively be paying twice for their access to healthcare. There is also some question as to whether health tourism will be curbed by the measures which do not apply to visitor visas.

How does it work?

The Immigration (Health Charge) Order 2015 specifies who pays the surcharge, when it is to paid, the consequences of non-payment and includes the various exemptions.

The charge must be paid at the time of applying for leave and the amount payable is based on the maximum period of time for which permission could be granted under the relevant application route. For family members applying under Appendix FM the period will commonly be 2 ½ years. A student undertaking a one year course may have to pay for 1 ½ years which reflects the maximum length of leave (17 months) that may be granted in that instance.

Users of the Visa4UK website will now find that the process of calculating and paying for the surcharge has been integrated into the main online application process. For paper-based applications, however, the surcharge must be paid separately using the Immigration Health Surcharge online portal. This will generate an IHS number which must be written on the front page of the application form. Applicants who do not pay the charge before submitting their application will receive a request for payment rather than having applications returned as invalid.

The surcharge is refunded when an application for leave is refused and in circumstances where there is an overlap of payment in consecutive periods of leave. The surcharge is not, however, refunded if leave is curtailed or if it is simply not taken up having been granted.

Exemptions and Examples

Most notable among the various exemptions contained in Schedule 2 of the 2015 Order are: Tier 2 (Intra-Company Transfer) applicants, those seeking asylum or humanitarian protection and nationals of Australia and New Zealand.

All entry clearance applications for periods of 6 months or less are exempt from the charge as are visitors applying under Appendix V of the Immigration Rules.

Some of those exempt from the charge will have full access to health care such as refugees and those from Australia and New Zealand (which have reciprocal agreements with the UK). Visitors, however, will be required to pay if they receive treatment from the NHS.  It is advisable that visitors arrange private insurance for the duration of their trip.

The Intra-Company Transfer exemption makes this Tier 2 vehicle an even more attractive option for employers. A family of 4 coming to the UK under Tier 2(ICT) for 4 years will save a total of £3,200 compared to a non-ICT sponsored employee and family coming for the same period.

The surcharge adds a further financial burden to family members seeking to enter or remain in the UK. For example, a parent with two dependent children who applies for leave to remain for a period 2 ½ years will now need to pay a total of £3,447 in application and surcharge fees. For many this will be prohibitive. Where issues of human rights arise, there is scope to challenge a surcharge fee if it would prevent the effective consideration of those issues.

Conclusion

The additional cost burden that the Immigration Health Surcharge creates is significant and will no doubt have an impact on the full spectrum of immigration applications in the UK. It is yet to be seen whether the charge will resolve the difficult question of who should have access to the NHS and how that should be managed.

For further information contact Nigel Smith, nigels@paragonlaw.co.uk.