Chapter 2: The rights of EU citizens and their families
The definition of EU citizenship
12.The concept of EU citizenship was first introduced into EU law by the Maastricht Treaty in 1993.3 Since then, anyone holding the nationality of an EU Member State has been also a citizen of the EU. Member State nationality is, therefore, a pre-condition of the status of EU citizenship. The concept is now set out in Article 20(1) of the Treaty on the Functioning of the European Union (TFEU),4 which provides:
“Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.”5
EU citizenship rights under the EU Treaties
13.EU citizens enjoy a range of EU Treaty-based rights including:
- the right to move and reside freely within the EU;6
- the right to vote and stand as candidates in municipal elections and European Parliament elections wherever they live in the EU;7
- the right to be assisted by another EU Member State’s embassy in a country outside the EU under the same conditions as nationals of that particular Member State, should their own Member State not be represented there;8
- the right to petition the European Parliament;9 and
- the right to organise, together with other EU citizens, a citizens’ initiative to call for new EU legislation.10
EU citizenship rights under the Citizens Directive
14.Professor Sionaidh Douglas-Scott, Anniversary Chair in Law, Queen Mary School of Law, University of London, explained that the right to move and reside freely in another Member State had given rise “to a panoply of rights”, which were “likely to be of the most pressing concern in the event of a Brexit”.11
15.The majority of these rights were set out in the 2004 Citizens Directive,12 which codified EU legislation dealing separately with the free movement and the residence rights of employed and self-employed people, students and other economically inactive people (such as those who are retired or unemployed), in order “to simplify and strengthen the right of free movement and residence of all Union citizens”.13 We set out the principal rights codified by the Citizens Directive in Box 1.
16.The Citizens Directive also applies to the European Economic Area (EEA) States: nationals of Norway, Iceland and Lichtenstein enjoy the same citizenship rights as those of EU citizens when they work and reside in an EU Member State. Similarly, nationals of EU Member States enjoy EU citizenship rights in EEA States.14
17.The Citizens Directive was implemented into UK law by the Immigration (European Economic Area) Regulations 2006.
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The Citizens Directive codifies the following rights:
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Source: Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, OJ L 158 (30 April 2004)
18.It is worth noting that all the individual rights to which the Citizens Directive gives effect are directly enforceable by EU citizens in any EU Member State. Unlike national immigration rules, they do not require the consent of the host State before they can be relied upon. It is for this reason that the rights of EU citizens to live in a Member State are not dependent on that State issuing a residence card. This does, however, lead to difficulties when EU citizens seek to prove that they have exercised their ‘treaty rights’ (see Box 1 above) for five years to gain permanent residence.
Practical difficulties in obtaining proof of a right of permanent residence in the UK
19.We received evidence from two members of the public illustrating this problem. Mr Gary Holland drew our attention to “the very serious consequences that Brexit may have for EU nationals living in the UK for a long period of time who do not qualify for permanent residency rights, and a common misconception as to how such rights are acquired”.16 He believed there was a “common myth” that simply residing in the UK for five consecutive years led to a right to permanent residency—but that this was incorrect. The comprehensive sickness insurance condition (see Box 1) meant that time spent as a student only counted towards residency if students possessed either medical insurance in their own country, or private medical insurance in the UK.17 This was “not at all publicised” and most people were “completely oblivious to it.” Furthermore, as all EU citizens residing in the UK automatically qualified for NHS care, “there is no need for people to even consider this (why would they?)”. He stated that other cases where residency did not count towards the qualifying period included:
“a) taking a year off from work to attend university, without sickness insurance; b) being out of work for a period of time and not claiming benefits; c) travelling/working/studying abroad for a while; d) working part-time and not earning enough; e) taking time off to be a carer without sickness insurance.”
Mr Holland thought that, when it finally came to submitting an application for proof of permanent residence, “plenty of people will be shocked to discover they do not qualify regardless of the number of years spent in the country.”18
20.Mr Stuart Whitehouse submitted evidence, having attended one of the inquiry’s evidence sessions, to correct a similar misapprehension, namely that EU citizens resident in the UK acquired automatic residency rights after five years. He gave the example of an elderly parent (an EU citizen) who came to the UK to be near their son or daughter, but who was neither dependent on them nor had worked for five years in the UK. Such a person would never acquire the right to permanent residency in the UK under EU law (having not exercised their treaty rights—see Box 1), even if they had been in the UK for ten years. They would be “in a kind of limbo”: they could not be removed from the country because they were an EU citizen; but neither could they apply for permanent leave to remain because that system only operated for non-EU citizens. Mr Whitehouse’s mother-in-law was in this situation:
“I can declare an interest in this because my mother in law has been in the UK for 9 years (Polish), her daughter (my wife) is a UK citizen by naturalisation but my mother in law did not work in the UK and the Home office says she has therefore not exercised her treaty right and is not eligible for permanent residence. We asked because she thought after 5 years she would be able to apply for naturalisation which she would be proud to obtain.”19
Conclusions
21.The rights of an EU citizen to live and work in any EU Member State, and to gain a permanent right of residence in that State after five years, are some of the most fundamental in EU law. From them have derived all of the additional citizenship rights that are necessary for nationals of EU Member States, and their families, to conduct their lives in an EU Member State of their choosing on equal terms with the nationals of that State.
22.That said, we received evidence suggesting that many EU nationals who have been in the UK for over five years may not be able to prove that they meet the criteria for permanent residence as an EU citizen. For example, those who are not economically active, including students, will have to show that they have had comprehensive sickness insurance cover for five years in the UK, notwithstanding that the National Health Service is freely available. We call on the Government to explain whether this consideration will influence the decision it makes on the cut-off point for deciding which EU nationals in the UK are given a permanent right to reside after Brexit.
23.We also call on the Government to publish statistics on the number of EU nationals in the UK who have obtained proof of a permanent right to residence, and the number of applications that are pending.
4 The Treaty on the Functioning of the European Union (TFEU) entered into force in EU Member States on 1 December 2009
6 Articles 20(1)(a) and 21, TFEU, OJ C 202 (7 June 2016), p 1–388; written evidence from Mr Anthony Speaight QC, p 4 (AQR0008)
7 Articles 20(1)(b) and 22, TFEU, OJ C 202 (7 June 2016), p 1–388; written evidence from Mr Anthony Speaight QC, p 4 (AQR0008)
8 Articles 20(1)(c) and 23, TFEU, OJ C 202 (7 June 2016), p 1–388; written evidence from Mr Anthony Speaight QC, p 4 (AQR0008)
9 Articles 20(1)(d) and 24, TFEU, OJ C 202 (7 June 2016), p 1–388; written evidence from Mr Anthony Speaight QC, p 4 (AQR0008)
10 Article 24, TFEU, OJ C 202 (7 June 2016), pp 1–388
12 Council Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, OJ L 158 (30 April 2004), pp 77–123
13 Recital 3 of Council Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, OJ L 158 (30 April 2004), pp 77–123
14 References to EU nationals and EU Member States in relation to EU citizenship rights should be read as including EEA nationals and EEA States.
15 Article 2(2) of Council Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, OJ L 158 (30 April 2004), pp 77–123
17 According to the 2015 Home Office guidance note on the requirement for “comprehensive sickness insurance” to prove a permanent right of residence as an EU citizen, one of the following five documents is necessary: 1) “Schedule or other document from a private medical insurance provider outlining the level of cover. This must have covered you/your sponsor/your family member(s) for the majority of risks while in the UK.” 2) Valid European Health Insurance Card (EHIC) issued by an EEA Member State (not the UK). 3) Form S1 (certificate of entitlement to healthcare if you do not live in the country where you are insured). 4) Form S2 (authorisation to obtain planned health treatment in another EU or EFTA country). 5) Form S3 (Certificate of entitlement to healthcare in your former country of employment). The guidance note also states that “the definition of comprehensive sickness insurance does not include cash-back health schemes, travel insurance policies, or access to the UK’s National Health Service (NHS).” See EEA (PR) Guidance Notes, version 2.0., December 2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/506058/EEA_PR__guide-to-supporting-documents_v1_3_2015–12-04_KP.pdf [accessed 30 November 2016]. The Court of Appeal has confirmed that the requirement for comprehensive sickness insurance “must be strictly complied with”, irrespective of the availability of medical care under the NHS (Ahmad v Secretary of State for the Home Department [2014] EWCA Civ 988, para 71).