Ahmad v Secretary of State for the Home Department

Factual and Procedural Background

The appeal concerns an EEA citizen's right of residence and the conditions for her spouse, a third-country national, to obtain a permanent residence card in the UK. The Appellant, a national of a non-EEA country, joined his spouse, an EEA citizen, in the UK in 2006. The spouse initially exercised treaty rights as a worker and later became a student from 2009 to 2012, during which time she did not have comprehensive sickness insurance cover ("CSIC") as required by EU law and UK regulations implementing the Directive 2004/38/EC. The Appellant applied for a permanent residence card based on his spouse’s status, which was refused by the Secretary of State. The Upper Tribunal upheld the refusal, and the Appellant appealed this decision.

Legal Issues Presented

1. Whether the requirement for comprehensive sickness insurance cover (CSIC) under Article 7(1)(c) of Directive 2004/38/EC must be strictly and literally complied with for an EEA citizen who is a student and their family members to obtain permanent residence.
2. Whether entitlement to free National Health Service (NHS) treatment in the UK satisfies the CSIC requirement under the Directive and UK regulations.
3. Whether the CSIC requirement and its application constitute unlawful discrimination against EEA nationals and their family members.
4. Whether the refusal to accept NHS entitlement as CSIC is disproportionate under EU law principles.
5. Whether the court should refer the interpretation of "comprehensive sickness insurance cover" to the Court of Justice of the European Union (CJEU) for a preliminary ruling.

Arguments of the Parties

Appellant's Arguments

• The term "comprehensive sickness insurance cover" in Article 7(1)(c) of the Directive is not limited to private insurance and can include public healthcare systems such as the NHS.
• The Appellant contends that his spouse's entitlement to NHS treatment suffices to meet the CSIC requirement.
• The UK’s refusal to recognize NHS entitlement as CSIC breaches the right to equal treatment under Article 24 of the Directive and Article 4 of Regulation 883/2004, constituting discrimination based on nationality.
• The CSIC requirement as applied is disproportionate and discourages EEA nationals and their families from exercising their rights to reside in the UK.
• The Secretary of State should investigate whether the spouse retains entitlement to healthcare in her home country, which could satisfy the CSIC requirement via reciprocal arrangements.
• The UK Parliament has disapplied the CSIC requirement domestically through the National Health Service Act 2006, which should be permissible under the Directive.
• The Appellant also invoked Article 35 of the Charter of Fundamental Rights regarding access to healthcare, although not as a direct ground of appeal.
• The Appellant submitted that prior case law was not fully considered or addressed and should not be followed.

Respondent's Arguments (Secretary of State)

• The CSIC requirement must be strictly interpreted to prevent EEA nationals and their families from becoming an unreasonable burden on the host state's social assistance system, consistent with the Directive and CJEU case law.
• Entitlement to free NHS treatment does not satisfy the CSIC requirement because it does not relieve the host state of financial burden; NHS is largely tax-funded and not equivalent to insurance.
• Article 24 and Article 4 of Regulation 883/2004 do not affect the residence conditions in the Directive and do not establish discrimination.
• The CSIC requirement is proportionate and necessary to protect the host state's public finances, particularly during the initial five-year period before permanent residence is acquired.
• The Secretary of State is not obliged to investigate entitlement to healthcare in the spouse’s home country, especially where no evidence was presented that such entitlement exists after the spouse ceased habitual residence there.
• Prior case law, including decisions of this court and the CJEU, supports the strict interpretation of the CSIC requirement and is binding.
• The National Health Service Act 2006 and domestic legislation cannot override or disapply the Directive’s conditions for permanent residence.
• Article 35 of the Charter is not applicable without an established right of residence under the Directive.
• There is no need for a preliminary ruling from the CJEU as the meaning of "comprehensive sickness insurance cover" is clear.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the Directive 2004/38/EC and its implementation via the Immigration (European Economic Area) Regulations 2006, focusing on the requirement for comprehensive sickness insurance cover (CSIC) for EEA citizens who are students and their family members seeking permanent residence. It affirmed that the CSIC requirement is a material condition designed to prevent EEA nationals and their families from imposing an unreasonable burden on the host state's social assistance system during the initial five years of residence.

The court considered prior binding case law, including decisions of the Court of Appeal and the CJEU, which consistently held that entitlement to free NHS treatment does not satisfy the CSIC requirement because the NHS is largely tax-funded and does not relieve the host state of financial responsibility. The court rejected the appellant’s argument that public healthcare systems such as the NHS should be treated as CSIC, emphasizing that the Directive’s conditions must be strictly and literally complied with, subject to the general principle of proportionality.

The court addressed the proportionality argument, distinguishing the facts of the present case from exceptional cases like Baumbast where refusal to recognize insurance was disproportionate. It found that allowing reliance on NHS entitlement would undermine the Directive’s objective to protect host states from financial burdens.

Discrimination claims were dismissed because the appellant lacked a right of permanent residence under the Directive, and equal treatment provisions apply only to those lawfully residing under the Directive’s conditions. The court also rejected arguments based on domestic legislation disapplying CSIC and on the Charter of Fundamental Rights, holding that these do not override the Directive’s requirements.

Finally, the court declined to refer the question of the meaning of "comprehensive sickness insurance cover" to the CJEU, finding the meaning sufficiently clear from existing case law.

Holding and Implications

The appeal is dismissed.

The court held that the requirement for comprehensive sickness insurance cover under Article 7(1)(c) of Directive 2004/38/EC and the corresponding UK regulations must be strictly and literally complied with by EEA nationals who are students and their family members seeking permanent residence. Entitlement to free NHS treatment does not satisfy this requirement because it does not relieve the host state of potential financial burdens. Consequently, the Appellant’s spouse, who lacked CSIC while a student, did not lawfully reside for the purposes of acquiring permanent residence, and the Appellant’s application for a permanent residence card was properly refused.

No broader precedent altering the interpretation of CSIC or residence rights was established. The decision reinforces the strict compliance standard for residency conditions under EU law and confirms the limited scope of public healthcare entitlement in satisfying insurance requirements.