Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/10402/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 September 2016
On 16 September 2016

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

SHIRA TZUR
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Pobjoy, instructed by The Aire Centre
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Israel. She appealed to a judge of the First-tier Tribunal against the respondent's decision on 3 March 2015 refusing her application for a residence card. The reason for the refusal was that the requirements of Regulation 4(d)(ii) of the Immigration (European Economic Area) Regulations 2006 were not satisfied in that the appellant and the sponsor did not have comprehensive sickness insurance in the United Kingdom, specifically because their policy did not cover pre-existing medical conditions for the first two years.
2. The judge noted evidence from Mr Crane, a Health Insurance Consultant at ActiveQuote.com, with whom the appellant and the sponsor had obtained insurance, that there was no way of including coverage for pre-existing conditions with UK insurers on an individual basis, and also information from a Mr Stephen Draper of Bupa that pre-existing conditions were not covered under the policy. Mr Matthew Evans, Director of the AIRE Centre, had made enquiries and received similar information i.e. that standard practice was that policies did not cover pre-existing medical conditions. The judge also noted a letter from Dr Emily Hull concerning the appellant and stating that during the time she had been a patient of hers since 17 September 2014 there was no history of any significant medical conditions, and with regard to the sponsor who had been a patient of hers for a similar period, she had not had access to earlier medical records but from his current medical records there was no history of any medical conditions. The judge also noted translated overseas medical notes which had nothing of note in them except to say that the appellant was an ex-smoker and the sponsor had a heart murmur and the sounds in 2002 were "absolutely normal".
3. The judge said that it was not known whether either of the couple had any medical conditions. They did not believe that they did but they had not undertaken any medical assessments in order to determine whether they had any undiagnosed medical conditions. He confirmed it was not known whether either of them had any medical conditions that were as yet asymptomatic but might develop to require treatment and medication in the near future. He said that he found, having regard to all the circumstances of the case, that the respondent's decision was not disproportionate given that the couple had only lived in the United Kingdom for twelve to thirteen months, where they had not disclosed income sufficient to pay for medical treatment and where they had failed to demonstrate that they did not suffer medical conditions by way of a medical assessment. He rejected the argument that the lack of available insurance policies in the United Kingdom was such that Regulation 4 could not be satisfied. Proportionality was required to be considered in each case upon the specific facts of the application, bearing in mind what had been said in Baumbast v Secretary of State for the Home Department [2002] 3CMLR 23. He accepted that the couple were of good character and that the appellant worked and paid tax and the sponsor intended to do so in the near future and that they had been unable to obtain insurance that was more comprehensive than that which they had purchased from Active.Quote.com.
4. The appellant sought and was granted permission to appeal on the basis first that the judge had erred in law in concluding that the rejection of the application for a residence card did not constitute a disproportionate interference with the appellant's right of residence in circumstances where the judge had accepted that it was not possible to obtain private health insurance covering pre-existing medical conditions in the United Kingdom. In addition it was contended that the judge had erred in finding that the decision was proportionate on the basis that the couple had not disclosed income sufficient to pay for medical treatment and had failed to demonstrate they did not suffer medical conditions by way of a medical assessment, given that in fact the sole basis for rejecting the application was that the appellant's private health insurance did not cover pre-existing medical conditions for the first two years of membership and did not refer to the two matters set out by the judge at paragraph 31 of the decision. In addition, if disclosure of this information had been required or if they had been required to undertake a particular medical assessment they would have done so. There was evidence of both financial means and medical status before the Tribunal.
5. Mr Pobjoy mentioned at the outset that the appellant's partner was now a worker within Regulation 4 and on the basis of that an application had been made for a residence card in January of this year which had been granted in July. This did not render the claim academic as it would mean there would be a later start for the period of residence.
6. It is not necessary for me to go into any detail into the submissions, although what I shall have to say about the law shortly has benefited significantly from the quality of the submissions made. The reason why no more needs to be said about the submissions arises as a consequence of a letter sent to Mr Evans at the AIRE Centre from Mr Peter Grant of the International Immigration Policy Group of the Home Office, dated 22 June 2016. In response to a request for information about the Home Office's policy on comprehensive sickness insurance for EEA nationals, it was confirmed that there was no requirement for private medical insurance policies to cover pre-existing conditions for a defined period. On the basis of this evidence, Mr Bramble accepted that it was a clear response, although post-decision it clearly went to the heart of the matter and made the original decision and hence the judge's conclusions on it incorrect. As a consequence he accepted, very fairly and properly, that the appeal fell to be allowed.
7. I indicated that that would be my decision and that I would provide a reasoned decision subsequently, which I now do.
8. The appellant had provided evidence that her EEA family member, her partner Mr Shimon Hassid, was a student. Regulation 4 of the Immigration (EEA) Regulations 2006 provides a definition of the term "student" for the purpose of the Regulations. Thus, Regulation 4(1)(d) contains the following definition:
"(d) 'Student' means a person who -
...
(ii) has comprehensive sickness insurance cover in the United Kingdom;
...".
The application was refused because although the appellant had provided evidence that she and her partner had medical insurance with Simplyhealth, the summary of cover that they had provided stated that the policy did not cover pre-existing medical conditions for the first two years of membership and consequently it was concluded that the requirements of Regulation 4(1)(d)(ii) were not met.
9. In Baumbast the relevant insurance cover did not include emergency treatment. The court stated at paragraph 91 that the relevant limitations and conditions were to be applied in compliance with the limits imposed by Community Law and in accordance with the general principles of that law, in particular the principle of proportionality. In addition, in respect of the application of the principle of proportionality to the facts in Baumbast, it was noted at paragraph 92 that it had not been denied that Mr Baunbast had sufficient resources within the meaning of Directive 90/364; second, that he had worked and had therefore lawfully resided in the host Member State for several years, initially as an employed person and subsequently as a self-employed person; third, that during that period his family also resided in the host Member State and remained there even after his activities as an employed and self-employed person in that state came to an end; fourth, that neither he nor the members of his family had become burdens on the public finances of the host Member State; and, fifth, that both he and his family had comprehensive sickness insurance in another Member State of the union.
10. These facts were described subsequently by the Court of Appeal in Ahmad [2014] EWCA Civ 988 at paragraph 45 as exceptional. That case was concerned with the question of whether a person could be regarded as having comprehensive health insurance in the United Kingdom because they were entitled to use the National Health Service. That claim was unsuccessful. The Court of Appeal noted the conclusion in that decision that the host state must apply the conditions for compulsory sickness insurance cover in accordance with the general principles of EU law, including in particular the principle of proportionality and should therefore disregard minor discrepancies which might arise when the cover was not totally comprehensive. It can be seen that proportionality forms part of the European Economic Area Nationals Qualified Persons Guidance of the Home Office of 7 April 2015 which states, inter alia, in that case workers must take a proportionate approach when they consider if an insurance policy is comprehensive. It said that for example a policy may contain certain exemptions but if it covers the applicant for medical treatment in the majority of circumstances it can be accepted.
11. Bearing in mind the evidence that was before the judge, I consider that even without the letter from Mr Grant, I would have found the judge's decision to be legally flawed. It is clear to me that the appellant had done all that could be done both to provide evidence of her medical history and that of her partner and also with regard to the availability of the kind of insurance cover that it appeared at least at the time of the decision to be required by the Home Office. Certainly, as Mr Grant says, the policy at pages 41 to 46 does not contain a requirement for private medical insurance policies to cover pre-existing conditions for a defined period. Were it ever to be a factor to regard it as being of relevance, I consider that, as in this case, an applicant who could provide good evidence going back for a sufficient period such as to show an absence of pre-existing conditions and also evidence that it is not possible to obtain coverage for pre-existing conditions with UK insurers would be able to argue successfully that any refusal decision would be disproportionate.
12. But that is by the way with respect to this appeal. In light of the concession in Mr Grant's letter and by Mr Bramble, I am entirely satisfied that the decision in this case was legally wrong, and for the judge's decision dismissing the appeal is substituted a decision allowing it.

Signed Date

Upper Tribunal Judge Allen 16 September 2016