Brexit: reciprocal healthcare Contents

Chapter 4: The Joint Report

37.In this chapter we consider how far the citizens’ rights provisions of the Joint Report have answered our witnesses’ concerns, and ask whether the Report has overlooked any existing aspects of reciprocal healthcare entitlements. We also consider the views of those witnesses who feared that their access to reciprocal healthcare would not be protected until the Joint Report was given a more secure legal status.

Box 6: Personal scope of the Joint Report

The personal scope of the Joint Report

In broad terms, the citizens’ rights provisions contained in the Joint Report apply to people exercising their rights to healthcare on Exit Day, 29 March 2019.

The joint technical note that the European Commission and UK Government published alongside the Joint Report stated that people in a cross-border situation on Exit Day (whether resident or on a temporary stay) could continue to rely on their entitlements, “as long as that stay or residence position continues”.

Moreover, the Joint Report stated that the rights of UK citizens who, on the date of the UK’s withdrawal were lawfully resident and already exercising free movement rights in the EU27, would be protected, for life, from discrimination on grounds of their nationality, and must be treated equally with nationals of the host state with respect to “social security, social assistance, [and] health care”.

The Joint Report also underscored that the rights of dependents would be maintained: “rights under the Withdrawal Agreement of EU/UK national family members are maintained irrespective of changes in status (e.g. an EU citizen-dependent child becoming a worker, student, self-sufficient person or self-employed person).”

The Joint Report and the four routes to reciprocal healthcare

The Joint Report guarantees in perpetuity the rights of citizens who have already exercised EU law rights to reside in another Member State, and who are using the S1 scheme, at the time of Brexit.

It also protects the rights of citizens who on the date of Brexit are visiting an EU/EEA country other than their country of residence, and who need to use their EHIC card to pay for emergency treatment. They will continue to be entitled to healthcare as long as that stay, residence or treatment continues.

Lastly, the Joint Report safeguards the rights of those already receiving pre-planned treatment on the date of Brexit under the S2 scheme and Patients’ Rights Directive.

Source: European Commission and HM Government, Joint Report on progress during phase 1 of negotiations under Article 50 TEU on the UK’s orderly withdrawal from the EU, (8 December 2017): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/665869/Joint_report_on_progress_during_phase_1_of_negotiations_under_Article_50_TEU_on_the_United_Kingdom_s_orderly_withdrawal_from_the_European_Union.pdf and Home Office and Department for Exiting the European Union, Joint technical note on the comparison of EU-UK positions on citizens’ rights (December 2017): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/665871/December_-_Joint_technical_note_on_the_comparison_of_EU-UK_positions_on_citizens__rights.pdf [accessed 23 February 2018]

UK citizens in the EU27 post-Brexit

38.Witnesses such as the BHA, the Law Society of Scotland, and the Academy of Medical Royal Colleges welcomed the progress that had been made in the Brexit negotiations by the time that they submitted evidence57, specifically the agreement to protect reciprocal healthcare provision for anyone living in an EU Member State on Exit Day.58 The Academy of Medical Royal Colleges approved of the proposal that any planned medical treatment would be completed post-Brexit.59 The burdens that might fall on the NHS as a result of citizens returning with complex health needs, or upon UK citizens resident in the EU27 in taking out costly private medical insurance, may also be allayed by the provision made in the Joint Report to safeguard the continuation of access to the S1 system.

39.The provisions of the Joint Report may be particularly welcome to UK citizens suffering from diabetes and other long-term conditions, who are likely to use the S1 system to access healthcare in other Member States. The Joint Report means that UK citizens in the EU27 who are receiving treatment for diabetes at the time of Brexit should be able to continue to do so for life. In addition, because the Joint Report guarantees that UK citizens resident in an EU27 state will continue to receive the same entitlements as the citizens of their host countries without discrimination, those individuals who are resident in the EU27 on Exit Day but develop diabetes or other long-term conditions later should be covered as well.60

40.There is some ambiguity in the Joint Report about the extent to which patients who, at the time of Brexit, have begun a course of pre-planned treatment under the S2 scheme or Patients’ Rights Directive, might be permitted to return to the EU after Brexit in order to receive further treatment. The text of the Joint Report states that healthcare should continue “as long as [the] treatment continues”. Lord O’Shaughnessy clarified for us that this would include repeat visits to the EU for treatment if the course of treatment had begun before Brexit. He said that although such patients would “not have to be physically abroad on exit day” for their treatment to continue, the final Withdrawal Agreement would need to provide clearer definitions for such provisions.61

41.One issue, however, has not been resolved by the Joint Report. The Law Society of Scotland, for example, urged the continuation of what Lord O’Shaughnessy called “onward free movement rights”—the ability of UK citizens resident in one EU Member State to move to another EU Member State post-Brexit and enjoy access to reciprocal healthcare there.62 The Joint Report made no provision for the continuation of these rights. While the draft Withdrawal Agreement,63 published on 19 March 2018, does not make provision for onward free movement either, a provision contained in earlier drafts, which would have precluded onward free movement, had been deleted. The significance of this change is unclear.

EU27 citizens in the UK post-Brexit

42.For EU citizens resident in the UK, the Joint Report guarantees that their rights be protected, for life, from discrimination on grounds of their nationality.64 The fears that we heard about EU citizens being forced to move back to their home countries, or take out private medical insurance, may therefore be allayed by the Joint Report.65

43.Since the rights of dependents of EU27 citizens lawfully resident in the UK and UK citizens lawfully resident in an EU27 country are provided for in the Joint Report, this should go some way to answering the concerns about continued healthcare for dependents that were outlined in the previous chapter.66

The Joint Report in law

44.Until the citizens’ rights provisions within the Joint Report find legal expression in a Withdrawal Agreement, and that Withdrawal Agreement is ratified, UK and EU citizens are likely to remain concerned about the continuation of their rights.67 The Joint Report itself includes the caveat that “nothing is agreed until everything is agreed”,68 and the Academy of Medical Royal Colleges argued that it would be essential for the UK and EU to reach a formal agreement, “or the repercussions for patients across the UK and EU, as well as the health and social care system will be huge”.69 Likewise, Professor Catherine Barnard of the University of Cambridge told us that “because the EU has been clear that nothing is agreed until everything is agreed … it leaves British nationals abroad in a difficult position”.70

45.One expatriate witness living in an EU27 country, John Trevor Moss, therefore called for a statutory “absolute guarantee of cover”.71 Witnesses from EU27 Member States resident in the UK were also exercised by the uncertain legal status of the UK Government’s desire to protect EU27 citizens’ rights. According to Samia Badani, without legal guarantees EU citizens could face a “loss of rights”.72

46.As well as benefiting from a continuing right to long-term healthcare, EU citizens resident in the UK will need a practical means by which they can exercise this right. Dr Richard Lang told us that giving the Joint Report effect in domestic UK legislation would require a “strong link” between an EU migrant or family member’s “settled status”, and any entitlement that they had benefited from before Brexit.73 But for Samia Badani, a focus on “settled status” was potentially problematic:

“There are about 1 million EU nationals who will not have lived [in the UK] for more than five years by 2019 [the Government’s current proposal is for residents to attain ‘settled status’ after five years]. We are concerned about the type of immigration status that they would have and the restrictions placed on them about access to public funds and healthcare.”74

47.She therefore proposed that in future, EU citizens’ access to healthcare might be protected by non-discrimination legislation.75 The BHA called for any agreement on citizens’ rights to be ‘ring-fenced’, so that “both citizens and organisations such as healthcare commissioners and providers could have some certainty to plan for the future”.76

48.On settled status, British in Europe and the3million expressed concern about the Joint Report’s position on people temporarily absent from the country on Exit Day, stating that “clarity” was needed on “what test will apply to evaluate whether they will fall within the personal scope—will this be a test of habitual or normal residence or other such test to determine whether or not they should be deemed to be resident in the UK or EU27 country on the date of exit”.77 In his evidence to us after the publication of the Joint Report, Lord O’Shaughnessy underlined that those EU citizens classed as “ordinarily resident” in the UK for the purposes of healthcare provision would have their entitlements protected; the rights of those without this status would be a matter for the negotiations over the future relationship between the UK and EU.78

49.British in Europe and the3million also raised doubts about whether those who arrived in the UK or EU27 during the transition period would be covered by the personal scope of the Withdrawal Agreement.79 Some of their concerns may have been met by the policy statement published by the Government on 28 February 2018, which stated that “EU citizens and their family members will be able to move to the UK during the implementation period on the same basis as they do today, which will be given effect through the Withdrawal Agreement.”80

Conclusions

50.The Joint Report agreed in December 2017 covers the entitlements of those within the personal scope of the Withdrawal Agreement benefiting from reciprocal healthcare arrangements at the time of Brexit. Though we acknowledge that its provisions are yet to be set down in law, and note that “nothing is agreed until everything is agreed”, we welcome the progress that the Joint Report has made in providing some reassurance to the millions of UK and EU citizens who currently reside in other Member States.

51.We would not wish to see this progress reversed in the future. This Committee has already called upon the Government to make a unilateral guarantee to protect the rights of the lawfully resident three million EU citizens who have, on the basis of EU free movement rights, made their lives in the UK.81 We therefore support proposals to ‘ring-fence’ in law the agreement on citizens’ rights embodied in the Joint Report, to provide clarity both to patients and to providers of reciprocal healthcare in the UK and EU.

52.We note that the Joint Report does not cover the right of UK citizens resident in the EU to move between EU Member States. Nor does it cover the position of EU27 citizens resident in the UK covered by the Withdrawal Agreement who subsequently leave the UK and then return. These are significant omissions, and we urge the Government to ensure that the final text of the Withdrawal Agreement includes provision for onward free movement rights, including the right to healthcare provision for UK citizens on the same terms as are enjoyed by EU citizens, and vice versa. If this proves impossible, we ask the Government, when replying to this report, to set out a detailed and clear position addressing this issue.

53.It is essential that, as well as having a continuing right to access long-term healthcare, EU citizens lawfully resident in the UK should be provided with a practical means by which to exercise that right. We call on the Government to use domestic legislation to clarify the means by which all EU citizens lawfully resident in the UK at the time of Brexit will be able to continue to access essential healthcare. We note the suggestion that anti-discrimination legislation might assist in confirming the rights of EU citizens to continue to access healthcare post-Brexit, and look forward to further detail in the final text of the domestic legislation that implements this aspect of the Withdrawal Agreement.


57 Written evidence from Law Society of Scotland (BRH0019) and Brexit Health Alliance (BRH0018).

58 Written evidence from the Academy of Medical Royal Colleges (BRH0020)

59 Ibid.

62 Q 96 and written evidence from Law Society of Scotland (BRH0019)

63 European Commission and HM Government, Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (19 March 2018): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/691366/20180319_DRAFT_WITHDRAWAL_AGREEMENT.pdf [accessed 20 March 2018]

64 Home Office and Department for Exiting the European Union, Joint technical note on the comparison of EU-UK positions on citizens’ rights (December 2017): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/665871/December_-_Joint_technical_note_on_the_comparison_of_EU-UK_positions_on_citizens__rights.pdf [accessed 23 February 2018]

65 However, see Articles 17k (ii) and (iii) of the draft Withdrawal Agreement, which make reference to comprehensive sickness cover. European Commission and HM Government, Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (19 March 2018): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/691366/20180319_DRAFT_WITHDRAWAL_AGREEMENT.pdf [accessed 20 March 2018]

66 Home Office and Department for Exiting the European Union, Joint technical note on the comparison of EU-UK positions on citizens’ rights (December 2017): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/665871/December_-_Joint_technical_note_on_the_comparison_of_EU-UK_positions_on_citizens__rights.pdf [accessed 23 February 2018]

67 On 28 February 2018, the Commission published a draft Withdrawal Agreement that represents in legal form its interpretation of December’s Joint Report. European Commission, Draft Withdrawal Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, (28 February 2018): https://ec.europa.eu/commission/sites/beta-political/files/draft_withdrawal_agreement.pdf.[accessed 20 March 2018]. This was transmitted to the United Kingdom on 15 March 2018. European Commission and HM Government, Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (15 March 2018): https://ec.europa.eu/commission/sites/beta-political/files/negotiation-agreements-atom-energy-15mar_en.pdf [accessed 20 March 2018] An updated version of this agreement was published on 19 March 2018, with the agreed text colour-coded. European Commission and HM Government, Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (19 March 2018): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/691366/20180319_DRAFT_WITHDRAWAL_AGREEMENT.pdf [accessed 20 March 2018].

68 European Commission and HM Government, Joint Report on progress during phase 1 of negotiations under Article 50 TEU on the UK’s orderly withdrawal from the EU, (8 December 2017): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/665869/Joint_report_on_progress_during_phase_1_of_negotiations_under_Article_50_TEU_on_the_United_Kingdom_s_orderly_withdrawal_from_the_European_Union.pdf [accessed 20 March 2018]

69 Written evidence from the Academy of Medical Royal Colleges (BRH0020)

71 Written evidence from John Trevor Moss (BRH0010)

73 Written evidence from Dr Richard Lang (BRH0022)

75 Ibid.

76 Written evidence from Brexit Health Alliance (BRH0018) and Q 59

77 British in Europe ‘Securing Citizens’ Right under Article 50: Reflections on Phase 1 & Considerations for Phase 2 of the negotiations’: https://docs.wixstatic.com/ugd/0d3854_3e2adeb0770a4e71b7d460957afbe926.pdf [accessed 19 March 2018]

79 British in Europe ‘Securing Citizens’ Right under Article 50: Reflections on Phase 1 & Considerations for Phase 2 of the negotiations’: https://docs.wixstatic.com/ugd/0d3854_3e2adeb0770a4e71b7d460957afbe926.pdf.[accessed 19 March 2018] “Personal scope” refers to the individuals who are covered by the Withdrawal Agreement. See Box 6.

80 Department for Exiting the EU and Home Office ‘EU citizens arriving in the UK during the implementation period’ (28 February 2018): https://www.gov.uk/government/publications/eu-citizens-arriving-in-the-uk-during-the-implementation-period/eu-citizens-arriving-in-the-uk-during-the-implementation-period [accessed 19 March 2018]. This is reflected in part 2 of the draft Withdrawal Agreement published on 19 March 2018. European Commission and HM Government, Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (19 March 2018): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/691366/20180319_DRAFT_WITHDRAWAL_AGREEMENT.pdf [accessed 20 March 2018]

81 European Union Committee, Brexit: acquired rights (10th Report, Session 2016–17, HL Paper 82)




© Parliamentary copyright 2018