Ahmad v Secretary of State for the Home Department

An economically inactive EEA citizen who resides as a student must hold comprehensive sickness insurance cover during the relevant five-year period. Entitlement to free treatment through the host state’s National Health Service does not satisfy that condition, since it leaves the host state bearing the financial risk which the condition is designed to avoid. A third-country-national family member consequently cannot acquire permanent residence through that citizen during a period of non-compliance. The conditions must be applied strictly, though subject to EU proportionality. Proportionality may address a minor defect in otherwise comprehensive cover in exceptional circumstances; it does not dispense with insurance where there is no cover and reliance on the host state’s health service remains possible.

Mr Ahmad, a Pakistani national, sought a permanent residence card in the United Kingdom as the husband of Mrs Ahmad, a Danish EEA citizen. Mrs Ahmad had initially worked in the United Kingdom, but became a student from about January 2009 until July 2012. During that period she had no comprehensive sickness insurance cover, although she could obtain NHS treatment.

The Secretary of State refused the application. The Upper Tribunal, in a determination dated 26 April 2013, upheld that refusal on the basis that free NHS treatment was not comprehensive sickness insurance. Mr Ahmad appealed, contending that NHS entitlement met the insurance condition or that a contrary result was discriminatory and disproportionate. The central issue was whether the insurance condition in Article 7 of the Directive could be functionally fulfilled by host-state healthcare.

Appeal dismissed. Arden LJ, with whom Beatson and Sharp LJJ agreed, held that the Upper Tribunal was correct.

1. Under Directive 2004/38/EC, a student’s right to reside for more than three months depends on actual compliance with the requirement for comprehensive sickness insurance cover. That right extends to a third-country-national family member only while the EEA citizen satisfies the relevant conditions. A period without such cover was therefore not lawful residence capable of supporting Mr Ahmad’s application for permanent residence.

2. Comprehensive sickness insurance need not invariably be private insurance. It cannot, however, consist of access to the host state’s own NHS. That construction would make the insurance condition redundant and defeat the Directive’s purpose of preventing economically inactive residents from becoming an unreasonable burden on the host state during the initial five years. The earlier domestic authorities and the CJEU decision in Ziolkowski, [2013] 3 CMLR 37, required that conclusion.

3. The conditions are to be construed strictly, subject to general EU principles including proportionality. Baumbast, [2002] CMLR 23, concerned an exceptional and minor gap in otherwise comprehensive cover. It did not permit a complete absence of cover to be treated as immaterial. The risk that the Ahmads might need NHS treatment was itself sufficient; it was unnecessary to prove that they had in fact imposed a financial burden.

4. The equal-treatment provisions did not disapply the residence conditions. Article 24 protects persons residing in accordance with the Directive, while Article 4 of Regulation EC/883/2004 ensured equal NHS access rather than a right to permanent residence. Domestic provision of free healthcare could not unilaterally relax the Directive’s conditions. Article 35 of the Charter added nothing because it did not establish a prior right of residence.

5. The meaning of the insurance condition was clear from consistent CJEU authority. No preliminary reference was required.

• Court of Appeal (Civil Division) — dismissed Mr Ahmad’s appeal and affirmed that the absence of comprehensive sickness insurance during Mrs Ahmad’s student period prevented the acquisition of permanent residence: [2014] EWCA Civ 988.
• Upper Tribunal (Immigration and Asylum Chamber) — by a determination dated 26 April 2013, upheld the Secretary of State’s refusal to grant a permanent residence card.