Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/24565/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 April 2016
And 18 July 2016
On 22 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SYMES

Between

NICOLAS FEHLANDT
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No appearance (on either occasion)
For the Respondent: Mr E Tufan, Mr N Bramble (Senior Home Office Presenting
Officers, April and July 2016 respectively)

DECISION AND REASONS

1. This is the appeal of Nicolas Fehlandt, a citizen of Chile born 26 January 1982, against the decision of the First-tier Tribunal of 21 September 2015 dismissing his appeal against the decision of the Secretary of State to refuse his application for a residence card to confirm his exercise of Treaty Rights as the extended family member of a student.

2. The Appellant entered the United Kingdom and was granted leave to enter as a student from 16 August 2013 until 30 October 2015. On 27 January 2015 he applied for a residence card on the basis of his relationship with his partner Natalia Cortazar. The First-tier Tribunal accepted the reality of their relationship, and also made findings that Ms Cortazar had studied for a Master's degree in Public Administration at the London School of Economics from 1 October 2013 until 30 June 2015. She first secured comprehensive sickness insurance cover ("CSIC") from 9 July 2015 until 8 July 2016 with Western Provident Association Ltd. From May to July 2015 she sought employment, as was attested to by various emails. On 26 June 2015, she applied to the Department of Work and Pensions for Jobseeker's Allowance, which she was awarded from 8 July 2015.

3. The application was refused on 23 June 2015 because in the Respondent's view Ms Cortazar had not shown herself to be a qualified person, for she had established neither the possession of CSIC so as to qualify her as a student, nor that she had been a jobseeker absent registration as such with the Department of Work and Pensions.

4. The First-tier Tribunal concluded that

(a) Ms Cortazar did not qualify as a student for EEA purposes as she had only obtained a form of qualifying CSIC following her course's conclusion, and her prior possession of a European Health Insurance Card ("EHIC") did not suffice to constitute CSIC in its own right;

(b) She was not a jobseeker because a condition precedent of that status was that she was present in this country seeking employment immediately following the expiry of some other right to reside under the Regulations: but the very lack of EEA student status just identified meant that she was not such a person.

5. Grounds of appeal argued that the Sponsor had complied with all relevant requirements, because EHIC was not excluded from being a relevant form of temporary comprehensive sickness insurance cover by the terms of The Immigration (European Economic Area) Regulations 2006.

6. Permission to appeal was granted on 15 February 2016 by the First-tier Tribunal on the basis that it was arguable that the EHIC might have qualified as a form of CSIC.

7. A Rule 24 Response of 3 March 2016 relied on Ahmad [2014] EWCA Civ 988 which at [71] held that possession of CSIC whilst a student was a condition that had to be the of strict compliance.

Findings and reasons - Error of law hearing

8. Article 7(1)(d) of the Directive 2004/38/EC ("the Directive"):

"Article 7
1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:
'?.(c) - are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or?'"

9. The Regulation is glossed by these guidelines from the European Commission on the implementation of Directive 2004/38 (COM (2009) 313, paragraph 2.3.2, emphasis in the original - these of course do not have the force of law, but are part of the relevant background):

"Any insurance cover, private or public, contracted in the host Member State or elsewhere, is acceptable in principle, as long as it provides comprehensive coverage and does not create a burden on the public finances of the host Member State. In protecting their public finances while assessing the comprehensiveness of sickness insurance cover, Member States must act in compliance with the limits imposed by Community law and in accordance with the principle of proportionality.
The European Health Insurance Card offers such comprehensive cover when the EU citizen concerned does not move the residence in the sense of Regulation (EEC) No 1408/71 to the host Member State and has the intention to return, e.g. studies or posting to another Member State."

10. Article 7(1)(c) receives domestic transposition via The Immigration (European Economic Area) Regulations 2006 at Regulation 4:

"Worker", "self-employed person", "self-sufficient person" and "student"
4.
(1) In these Regulations ?
(d)"student" means a person who-
(i) is enrolled, for the principal purpose of following a course of study (including vocational training), at a public or private establishment which is-
(aa) financed from public funds; or
(bb) otherwise recognised by the Secretary of State as an establishment which has been accredited for the purpose of providing such courses or training within the law or administrative practice of the part of the United Kingdom in which the establishment is located;
(ii) has comprehensive sickness insurance cover in the United Kingdom; and
(iii) assures the Secretary of State, by means of a declaration, or by such equivalent means as the person may choose, that he has sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence. "

11. There is no doubt, given those provisions, that CSIC is required in order for an EEA migrant to demonstrate that they hold the status of a student for the purposes of exercising free movement rights. The Home Office Response is correct to note that in Ahmad [2014] EWCA Civ 988 Arden LJ states that the conditions in Article 7(1) are to be interpreted strictly subject to the general principles of EU law, such as proportionality. However, the judgment also records that

"it is not enough for Mr Kadri QC to establish that CSIC can include public healthcare provision. The Secretary of State accepts that it can. However, the Secretary of State does not accept that it can include the public healthcare system of the host state because that would defeat the object of the Directive: it would not relieve that state of the cost of providing healthcare in the first five years."

12. So it can be seen that Ahmad is a case on the necessity of CSIC being possessed other than via the public healthcare system of the host state - it does not bear on the question of whether or not an EHIC may qualify as CSIC, and indeed the Secretary of State's concession therein was that public healthcare provision other than from the host state could qualify. Indeed the point is made even more clearly in Ahmad at [53] where it is said that

"It is common ground that if there were reciprocal arrangements with the EEA national's own state that would be sufficient to constitute comprehensive insurance cover."

13. That concession is in tune with the Home Office Guidance which states (at page 44 of 66 of the Guidance EEA nationals qualified persons version 3.0, 7 April 2015):

"For applications for a registration certificate or a residence card
[Applicants] must provide one of the following documents to show they have comprehensive sickness insurance:
A comprehensive private medical insurance policy document
A valid European Health Insurance Card (EHIC) issued by an EEA member state other than the UK (for people temporarily in the UK)."

14. Given these considerations, following the hearing as to whether there was an error of law in the decision below, I accepted that an EHIC was in fact a qualifying form of CSIC and I found that the First-tier Tribunal erred in law in finding to the contrary.

15. The materials before me at that time did not demonstrate whether Ms Cortazar was present on a temporary basis or a long-term one. The point was not exposed as relevant in the proceedings below, or indeed before me at the error of law hearing, where Mr Tufan was not aware of the Home Office guidance. For this reason it was not possible to determine whether the EHIC, which potentially qualified as a species of CSIC, in fact did so. In the circumstances I considered the fairest outcome would be to recognise that an error of law was established as to the potential relevance of EHIC, and to set this appeal down for further hearing to make the limited requisite findings in the Upper Tribunal.

16. At the continuation hearing in the Upper Tribunal, there as again no appearance for the Appellant, and no explanation was put forward for his non-attendance notwithstanding the directions I had made for further evidence to be provided. There being no reason in the interests of justice to defer final determination of the appeal, I accordingly heard submissions from Mr Bramble for the Secretary of State, who submitted that whilst there was scant evidence as to Ms Cortazar's intentions at the relevant time, it was reasonable to infer that she had consistently wished to remain in this country on a permanent basis, inconsistently with the proposition that her residence was only temporary which would necessarily underlie a finding that her EHIC qualified as CSIC at the relevant time.

17. In the absence of any evidence to contradict the inference that Mr Bramble invited me to draw, I accept on balance of probabilities that the Appellant, on whom the burden of proof lies, has failed to establish that the EHIC qualified as CSIC prior to 9 July 2015.

18. The Sponsor was studying for a Master's degree at the London School of Economics. The Caseworker Handback Sheet of June 2015 which formed part of the Respondent's bundle below notes that she had stated she was seeking employment following her course ending, but the mobile telephone number given to contact her to pursue any enquiries relating to the application transpired to be disconnected.

19. The Appellant stated that his relationship with her was durable in the representations supporting his residence card application in March 2015. A letter co-signed by Appellant and Sponsor of 7 January 2015 states that they wished to remain in the United Kingdom after Ms Cortazar finished her studies. By the time the appeal was lodged against the decision of the Secretary of State on 8 July 2015, the Appellant was able to assert that he had the right to reside in the UK alongside her "as she will stay in the United Kingdom indefinitely".

20. It seems to me that this material justifies an inference that the Sponsor's stay was in fact seen by the couple as permanent, and thus not temporary, prior to the date at which she acquired private health insurance, thereby disqualifying her EHIC from counting as CISC. Thus she was not a "student" for the purposes of the EEA Regulations. This finding also inevitably means that she was not "enjoying a right to reside pursuant" to working, self-sufficiency, studying or being self-employed (Reg 6(1) read with Reg 6(5)(b)) and thus did not satisfy the condition precedent to being a job-seeker thereafter.

21. She has accordingly not established herself to be a qualified person, and the Appellant has not shown himself to be the family member of such a person. Accordingly the appeal is dismissed.

Decision

The appeal is dismissed.

Signed: Date: 26 July 2016

Deputy Upper Tribunal Judge Symes