Secretary of State for Work and Pensions v GS (PC): [2016] UKUT 394 (AAC); [2017] AACR 7

Upper Tribunal Administrative Appeals Chamber decision by Judge Ward on 16 August 2016.

Read the full decision in [2017] AACR 7ws].

Judicial Summary

European Union law – free movement of workers – whether European Health Insurance Card provides comprehensive sickness insurance for purposes of self-sufficiency under Directive 2004/38/EC

In 2004 the claimant, an Italian national, returned to the UK to live, having previously worked here as well as in Italy, Switzerland and Spain. Initially he lived off his savings and stayed with his son, who had dual British and Italian nationality, before successfully claiming jobseeker’s allowance in 2009. In 2012 he successfully appealed against the Secretary of State’s refusal of his claim for state pension credit, the First-tier Tribunal (F-tT) holding that he had a right of permanent residence under Article 16 of Directive 2004/38/EC based upon his residence since 2004, and that he satisfied the requirement for comprehensive sickness insurance cover under Article 7 by his possession of a European Health Insurance Card (EHIC). The Secretary of State appealed against that decision to the Upper Tribunal and among the issues before it were whether the claimant was habitually resident in the UK (or here only to “stay”), whether an EHIC satisfied the requirement for comprehensive sickness insurance cover, and which Member State was the competent state. Held, allowing the appeal, that:

  1. as the claimant’s habitual centre of interests had become the UK, he had therefore become habitually resident in it. It followed that the UK was not the temporary centre of his interests, and he was not engaged in a “stay”: I v Health Service Executive, C-255/13, EU:C:2014:1291 applied. The Italian authorities would have been justified under Article 22 in refusing any claim for the reimbursement of his medical costs on the basis of his EHIC (paragraphs 32 to 33);

  2. at the date of his claim for state pension credit the claimant did not satisfy the requirement for comprehensive sickness insurance cover to a sufficient extent to establish a permanent right of residence under Article 16 of the Directive. It did not follow that there were no circumstances in which an EHIC could satisfy that requirement but the conditions governing the scope of the coverage must be considered and applied to the circumstances of the particular case (paragraphs 38 to 40);

  3. enforcement of the comprehensive sickness insurance cover requirement was not disproportionate (paragraphs 42 to 46);

  4. there was insufficient evidence of dependency by the claimant on his son for the requisite five years and nor was there evidence of such dependence at the date of claim for state pension credit (paragraphs 48 to 56);

  5. any rights that might be conferred upon the claimant because of his Swiss retirement pension could not help him (paragraphs 58 to 59);

  6. the claimant’s right to reside immediately before his claim for state pension credit was solely as a jobseeker and the claimant no longer had any scope for requiring a personalised assessment of his circumstances to be carried out: Alimanovic, C-67/14, EU:C:2015:597 (paragraph 60).

Published 1 December 2016
Last updated 3 May 2017 + show all updates
  1. Decision selected for reporting as [2017] AACR 7
  2. First published.