Dr Sylvia de Mars, Newcastle
University*
* With many thanks to Prof Charlotte O’Brien for all the
idea-swapping that preceded this blog post.
Background
Does the NHS provide
‘comprehensive sickness insurance’ (CSI) cover? It is a small question, but one
that has had significant consequences for a wide range of EU nationals who
resided in the UK between at least 2011 and today.
The background to the question is
something I have written about for over a decade at this point (‘Economically
Inactive EU Migrants and the NHS: Unreasonable Burdens without Real Links?’
(2014) 39(6) ELRev 770; ‘Managing
Misconceptions about EU Citizens’ Access to Domestic Public Healthcare: an
EU-Level Response?’ (2019) 25(4) European Public Law 709):
economically inactive EU citizens, under the rules for residency set out in
Article 7(1)(b) Directive
2004/38 (the ‘Citizenship Directive’, or ‘CD’), only have a right to reside
for longer than three months in a different Member State if:
‘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 and have
comprehensive sickness insurance cover in the host Member State’.
A similar rule, set out in
Article 7(1)(c), informs students that they must have comprehensive sickness
insurance in order to live in a host Member State for more than 3
months—although it does not require the same for their family members.
What is comprehensive sickness
insurance? Like many key EU law terms, it is a generic catch-all intended to
encompass all sorts of ‘healthcare’ provision in all the Member States, and it
is not further defined anywhere. The
CJEU’s case law, clarifying most aspects of unhelpfully general EU law, has
never addressed the concept directly – and so it has fallen to national courts
to interpret it instead.
The UK here faced a particular
question: under national law, everyone ordinarily resident in the UK is
entitled to use the NHS for free. ‘Ordinary residence’ does not have a specific
meaning in legislation in the UK, but according to settled case law (Shah
v London Borough of Barnet [1983] 1 All ER 226), effectively just
refers to the country where someone lives for a ‘settled purpose’—and this can
be forward-looking, in the sense that if you move to the UK with the intention
of settling, you are also ordinarily resident. In practice, this means that any
EU national who moves to the UK with the intention of staying for more than
three months will be ‘ordinarily resident’ and will be entitled to access the
NHS.
Here is where the legal problem
that the CJEU only
tackled in 2022 arises. In the UK, taking what is in essence a purposive
approach to Directive 2004/38, the courts have long insisted that CSI cover
cannot mean being permitted to access the NHS. Sullivan LJ’s comments in Kamau (Kenya) [2010] EWCA Civ 1302 are
illustrative:
‘A person who
has to rely on the United Kingdom's National Health Service is no more
self-sufficient than a person whose resources are inadequate so that he may
become a burden on the United Kingdom's social assistance system."
This was also Home Office policy
from 2008 onwards: applicants for documentation concerning the right to reside
in the UK under EU law consequently had
to either be employed, or had to demonstrate they had some sort of
‘comprehensive sickness insurance’ in the UK. The problem these applicants
faced was that there is no ‘comprehensive sickness insurance’ cover in the UK;
private insurance generally only covers secondary care, and frequently can only
apply once someone has already lived in the UK for over 12 months. An EU
national student moving to the UK in 2010, in other words, could as a matter of
practical fact not actually prove to the Home Office that they had EU rights to
reside – although in practice, the Home Office started accepting unusable and
only somewhat comprehensive private health insurance policies as ‘evidence’ of
CSI.
EU nationals themselves very
often did not actually encounter the sting in the tail of this policy for
years, as they themselves were not required to hold documentation confirming
they had a right to reside in the UK: their passport did that for them.
However, there were two situations where EU nationals would have concrete reasons
to prove their residency status:
If they had a
family member from outside of the EU, whose residency rights were dependent on
their own satisfying of Article 7 of the Citizenship Directive; or
If they wanted
to apply for UK nationality after holding permanent residency for one year,
where the Home Office also required
them to demonstrate that they had comprehensive sickness insurance during any
periods of time when they were not employed.
Our EU student who started living
in the UK in 2010, as such, might not have found they did not hold the
documentation the Home Office required them to until 2016 – and their new
‘counter’ for lawful residence under the Directive, as interpreted by the Home
Office, would start in 2016, if and when they got private health insurance.
Did nobody ever complain about this policy?
Immigration practitioners have
been furious about the Home Office interpretation of the rules for as long as
they have existed, both because they are impossible to satisfy, and because
there is nothing in Directive 2004/38 that actually precludes NHS coverage from
being CSI. And they took their concerns to the Commission—who in April 2012 confirmed
that they were taking infringement proceedings under Article
258 TFEU against the UK by sending them a reasoned opinion about their
implementation of the Citizenship Directive…but never followed through on that
reasoned opinion, let alone with a reference to the CJEU.
I have long had suspicions as to
why. It is a matter of fact that the Commission does not have to enforce
breaches of EU law, and the CJEU has ruled out the idea that its use of Article
258 TFEU could be judicially challenged if it was clearly politically motivated…
as I suspect it was here. The idea that the NHS was a ‘free for all’ for newly
arrived EU nationals would have been politically toxic in the UK, and the idea
of pushing such a claim forward with a Member State with rising Euroscepticism
would have undoubtedly brought exactly those types of ‘benefit tourism’
headlines out in the UK. And while the Commission hesitated, or paused, the UK
voted to leave the European Union—at which point, other matters (like ensuring
EU nationals in the UK retained their rights) became a much higher priority
than stopping the Home Office from demanding economically inactive EU nationals
demonstrate they have health insurance that doesn’t exist in the UK.
Fast-Forward to 2022: VI v HMRC
The EU has avoided ruling on what
the NHS ‘is’ for a long time, and not only with respect to comprehensive
sickness insurance. Only in 2022 did it finally take an opportunity to make an
assessment of how the NHS, as a service, should be treated, although the
preliminary reference sent by the Social Security Appeal Tribunal (NI) would
have let it avoid commenting on the NHS as ‘comprehensive sickness insurance’ (eg, see paragraph 31: a question as
to whether the Common Travel Area (CTA) provides reciprocal healthcare coverage
as suggested in Ahmad
can be answered without actually addressing what the NHS ‘is’.).
The case in which a definition of
‘CSI’ came to the fore is an odd one, not least of all because it is on the
basis of the known facts actually a case in which CSI should not have figured
at all. The case concerned VI, a Pakistani national, who lived in Northern
Ireland with her husband (also Pakistani) and her four children. At least one
of the children has Irish nationality on account of having been born in
Northern Ireland in 2004.
The parties were agreed that VI
had ‘sufficient resources’ and thus met that requirement of Article 7 CD, and
they also agreed that between August 2006 and August 2014, VI and her entire
family had comprehensive sickness insurance.
As that is a period longer than 5 years, the Irish national son was also
agreed to have attained permanent residence (presumably by 2011).
However, HMRC found that VI was
not entitled to receive Child Tax Credit or Child Benefit for the periods in
which she requested it and in which she was not covered by comprehensive
sickness insurance. This, in total, was approximately 3 months in 2006 and 1
month in 2014. HMRC also appears to have conceded that she does not have to
repay the benefits she received in those months: it was their error, in that she did not misrepresent her status and was
clear about when she did and did not hold ‘comprehensive sickness’ insurance.
Jurisdiction
Before it addressed the referred
questions, the CJEU clarified its jurisdiction in the case: it could answer
this preliminary reference request despite the fact that it was submitted on 7
April 2020. First, Article 127 of the withdrawal
agreement (WA) makes clear that during the so-called ‘transition period’,
EU law would continue to operate in the UK as it did when it was a Member
State; and secondly, Article 86(2) WA made clear that the CJEU would retain the
jurisdiction to answer preliminary references submitted before the end of the
transition period. This was not contentious – but probably worth stressing all
the same, given the timing of the ruling.
Referred Questions
The Social Security Appeal
Tribunal (NI) sent three questions to the CJEU.
First, it was asked if
permanently resident children have to maintain CSI in order to maintain a right
to reside. The CJEU was quick on this, pointing out that Article 16(1) CD makes
clear that the conditions in Article 7 do not apply to EU national who has
permanent residence [54]; and Article 16(2) CD and Article 21 TFEU as
interpreted by the CJEU extends the same to ‘family members’ of EU nationals
[56], even where they are not ‘dependent family members’ in the ascending line
[57-58]. From 2011 onwards, in other words, neither VI nor her son would have
needed comprehensive sickness insurance in order to maintain their right to
reside in Northern Ireland.
The second question referred
asked if the CSI requirement actually applied to a child covered by Article 7
CD, and their third country parent that is taking care of them. The CJEU here
indicates that non-English versions of the Directive make it clear that the
requirement for comprehensive sickness insurance applies to both the EU
national and their family members, as defined by the Directive and by CJEU case law on parents who are
caretakers for their EU national children [such as Chen].
That requirement, per the Directive, is there for the entirety of the 5 year
residence period prior to an EU national attaining permanent residence—and the
CJEU makes it clear that it does not matter if the CSI is held by the child,
covering the parent, or held by the parent, and covering the child [67].
Here is where the CJEU, without
being expressly prompted, comments on the NHS:
68 In the present case, it
is apparent from the documents before the Court that VI and her son were
affiliated during the period in question, namely from 1 May 2006 to
20 August 2006, to the United Kingdom’s public sickness insurance system
offered free of charge by the National Health Service.
69 In that regard, it must
be recalled that, although the host Member State may, subject to compliance
with the principle of proportionality, make affiliation to its public sickness
insurance system of an economically inactive Union citizen, residing in its
territory on the basis of Article 7(1)(b) of Directive 2004/38, subject to
conditions intended to ensure that that citizen does not become an unreasonable
burden on the public finances of that Member State, such as the conclusion or maintaining,
by that citizen, of comprehensive private sickness insurance enabling the
reimbursement to that Member State of the health expenses it has incurred for
that citizen’s benefit, or the payment, by that citizen, of a contribution to
that Member State’s public sickness insurance system (judgment
of 15 July 2021, A (Public health care), C‑535/19, EU:C:2021:595,
paragraph 59), the fact remains that, once a Union citizen is affiliated
to such a public sickness insurance system in the host Member State, he or she
has comprehensive sickness insurance within the meaning of
Article 7(1)(b).
70 Furthermore, in a
situation, such as that in the main proceedings, in which the economically
inactive Union citizen at issue is a child, one of whose parents, a
third-country national, has worked and was subject to tax in the host State
during the period at issue, it would be disproportionate to deny that child and
the parent who is his or her primary carer a right of residence, under
Article 7(1)(b) of Directive 2004/38, on the sole ground that, during that
period, they were affiliated free of charge to the public sickness insurance
system of that State. It cannot be considered that that affiliation free of
charge constitutes, in such circumstances, an unreasonable burden on the public
finances of that State.
The CJEU then rules out that VI
and her son find themselves in a Texeira
situation, where EU nationals parents retain a right to reside after having
been workers because their children are education—and confirms that as a
consequence, VI and her son both needed to be covered by comprehensive sickness
insurance.
Finally, the CJEU addresses a
particular ‘twist’ on CSI cover that the UK courts have ruled on, which is that
if the UK has reciprocal healthcare arrangements with a Member State, and so
the UK can ‘reclaim’ healthcare costs from that Member State if one of its
nationals uses the NHS, that satisfies the requirement for CSI. In practice,
this UK means that anyone receiving treatment under the European Health
Insurance Card (EHIC), intended to cover only temporary stays abroad, is deemed by the Home Office to have
comprehensive sickness insurance. The CJEU declined to decide if the UK’s
arrangements with Ireland under the Common Travel Area made for a ‘reciprocal
arrangement’ that amounted to CSI, simply because the referred questions did
not actually clarify what those arrangements were [73-74].
This, of course, would not matter
greatly to the referring tribunal, because the CJEU’s interpretation of
comprehensive sickness insurance is enough to decide VI’s case: if NHS cover is
comprehensive sickness insurance, VI was entitled to Child Tax Credit and Child
Benefit throughout her residence in the UK, regardless of whether she also held
private insurance.
Comments
General
A first observation is that it is
doubtful that VI is a case that actually should
have produced a definition of CSI in relation to NHS entitlement. This is
nothing to do with Brexit, but rather to do with the facts of the case itself.
The point at which HMRC effectively conceded
that they were not going to reclaim the benefits paid out, and the error was
theirs, it is not clear what ‘dispute’ remained between VI and HMRC. The CJEU
has interpreted the references as being primarily
about VI’s ‘right to reside’ during the relevant periods where she did not have
CSI (see, eg, para 29, where
the CJEU notes that the parties disagree on VI’s entitlement to Child Tax
Credit and Child Benefit – but rewords that into a question on the ‘subject
matter’ of ‘VI’s right of residence in the UK’), but obviously the
actual dispute between VI and HMRC was about the benefits she was given during those periods; a dispute about
VI’s right to reside in the absence of the benefits, after all, would have been
with the Home Office, not HMRC.
It thus looks like the case was
constructed very carefully to avoid falling into the realm of ‘hypothetical’ rulings
that the CJEU has consistently refused to consider because the dispute that
resulted in the referred question had been resolved by the time of its ruling (Case C-225/02 García
Blanco). Add to this the fact that the preliminary reference
questions sent did not actually require
the CJEU to offer an opinion on whether NHS entitlement equated to CSI, and we
can only conclude that the CJEU was determined to make this case ‘work’ for it.
Having said that, there are a
number of reasons to wonder if VI is
actually going to mean anything for anyone—at least in the UK.
The highlighted passages in VI about CSI may have an impact in other
Member States that operate ‘public health services’ like the NHS: to the best
of my knowledge, these do not currently require economically inactive EU nationals
to contribute in order to gain access, but the VI judgment clearly enables them to set up something akin to the
Immigration Health Surcharge that the UK charges immigrants for economically
inactive EU nationals. It reemphasizes the distinctions in terms of EU
law-based rights and duties between those who ‘integrate’ and those who do not,
as the CJEU has been doing ever since its Dano
judgment—though it does also stress, in paragraph 70, that any requirement for
‘paying into’ a national health service has to be proportionate. In the VI case, VI’s husband was a full-time
employee who paid taxes much as any employed UK national, so ‘double-charging’
would have been disproportionate. A family like VI’s clearly does fit the
‘integration’ demands the CJEU has recently placed on EU nationals who move to
other Member States: in the CJEU’s own words, they do not form an unreasonable
burden. Given the requirement for ‘proportionate’ charges to EU nationals for
use of a public healthcare system, the impact in other Member States may be
quite limited in practice; it is not immediately obvious that the cost of
administering such a system is outweighed by the actual charges that would be
recovered.
VI and Brexit?
But what of in the UK? As far as
VI herself goes, apparently HMRC are not asking for the money back—so
regardless of what the CJEU said, it appears that her dispute with HMRC is for
all intents and purposes done. Her main victory here is that a court that the
UK wanted rid of at all costs as part of the Brexit process has, in essence,
told her she was right.
What is far less clear is what
happens with this CJEU ruling in practice in the UK, where problems with
demands for CSI have affected hundreds of thousands of EU nationals since at
least 2011. If the UK were still an
EU Member State, the follow-up is obvious: anyone whose application for
permanent residency or—the far more costly—UK citizenship was rejected because
of the absence of CSI when they were entitled to NHS care would have a cause
for damages. The effects of a status being declined for some will have meant
that they took out (also expensive) private insurance they could not use and
waited six years—but for others will have meant separation from family members,
insecurity in terms of access to benefits because they did not have permanent residency in the UK, and far greater expenses.
These appear to be losses caused by what as of 10 March 2022 we know are
breaches of EU law: applicants would have been entitled to permanent residency
as a matter of EU law, and the UK’s failure to grant them evidence of this
status, and the attached benefits, caused identifiable losses. Were we still a
Member State, then, a Francovich
claim for state liability seems like the logical follow-up to VI.
But we are
not, and Schedule 1(4) of the EU (Withdrawal) Act 2018 generally rules out the
possibility of Francovich damages via domestic court proceedings after
the transition
period in the withdrawal agreement:
There is no
right in domestic law on or after [F1IP completion day] to
damages in accordance with the rule in Francovich.
However,
hidden in paragraph 39(7) of Schedule 8 of the EU (Withdrawal) Act 2018 is an
exception that covers rights held and violated before Brexit:
Paragraph 4 of Schedule 1 does not apply in relation to
any proceedings begun within the period of two years beginning with exit day so
far as the proceedings relate to anything which occurred before exit day.
VI falls within this exception, and so
Francovich damages for historic mistreatment of EU nationals seeking
confirmation of permanent residency and being told they could not have it
because they were reliant on the NHS are a definitive possibility, provided
they are started before the end of 2022. Historic wrongs here can thus still be
righted, provided claims are made quickly enough.
What
happens if they are not, and EU nationals want to make a claim after 2022?
Schedule
1 of the EU (Withdrawal) Agreement 2018 is itself very clear – but what is not clear is whether this domestic law provision survives the UK’s obligations under the Withdrawal
Agreement itself as implemented in UK law. Section 5(7) of the EU (Withdrawal)
Act 2018 thus indicates that Schedule 1 is “subject” to so-called “relevant
separation agreement law”, and section 7(C) of the same Act makes clear that
“relevant separation agreement law” includes the Withdrawal Agreement. If state
liability is an EU law doctrine that forms part of the Withdrawal Agreement,
then, it would take precedence over the UK’s abolition of the doctrine as a
matter of domestic law.
Is Francovich part of the Withdrawal Agreement? On a purely practical level,
it’s not clear what the point of Articles 86-89 WA is in the absence of an
ability to provide remedies for breaches of EU law. Article 86 WA gives the
CJEU the jurisdiction to hear this reference post-transition, and Article 89 WA
makes clear that the ruling in VI is still
binding on the entirety of the UK:
1.Judgments
and orders of the Court of Justice of the European Union handed down before the
end of the transition period, as well as such judgments and orders handed down
after the end of the transition period in proceedings referred to in Articles
86 and 87, shall have binding force in their entirety on and in the United
Kingdom.
2.If, in a
judgment referred to in paragraph 1, the Court of Justice of the European Union
finds that the United Kingdom has failed to fulfil an obligation under the
Treaties or this Agreement, the United Kingdom shall take the necessary
measures to comply with that judgment.
If a CJEU judgment would not have
the same effects in the UK (where it is binding in its entirety) as it would in
the Member States, it is difficult to see how the ability for the CJEU to rule
on matters after 2022 has much meaning: an obligation to comply with CJEU
rulings on how to apply EU law applicable in the UK when it was a Member State is effectively moot, as the same EU law
is not applicable in the UK anymore now. For the CJEU’s declaratory judgments
to have any practical effects, they would need to be able to result in remedies
to be obtainable for those who experienced losses because of historic,
pre-Brexit breaches of EU law.
Important here is that that Article
4(1) WA declares the entire Withdrawal Agreement to be directly effective where
it is clear, precise and unconditional, and Article 4(3) and 4(4) WA requires
that “Union law or concepts or provisions thereof” have to be interpreted and
applied in accordance with both methods, general principles, and pre-Brexit
CJEU case law.
In 2023, therefore, an individual could argue before a UK court that
Article 89 WA is directly effective—and that part of the UK taking the
‘necessary measures’ to comply with the judgment means that UK courts should be
able to consider claims for state liability, as that is part of the EU law’s
normal enforcement repertoire (as established by CJEU case law). Whether a UK
court would accept this logic, however, is debatable; while the Withdrawal
Agreement as a whole is supreme to any conflicting domestic law, and the EU
(Withdrawal) Act 2018 acknowledges as much for domestic law purposes, it is a
genuine matter of interpretation if Schedule 1(4) of the EU (Withdrawal)
Agreement 2018 is in conflict with the Withdrawal Agreement. What would happen
with any attempt to ‘Francovich’ the VI ruling after 2022, in other words, is anyone’s
guess.
In the absence of an EU law
remedy, anyone affected by what is over a decade of misapplication of Article 7
CD but unable to act on that via a case before 2023 looks out of luck. Judicial review applications have a time limit of 3
months maximum, and even the most generous application of that in the case of VI would have the clock starting on
10 March 2022. An argument that links VI to the withdrawal agreement's general 'EU law' effects might thus look like a long shot, but by 2023, it will be the only possible shot.
In terms of ongoing UK policy that VI affects, we also have to look at what the withdrawal agreement applies, and requires, in terms of UK interpretation and application of that EU law. The UK has left the EU, of course, but the Citizenship Directive
remains a key component of the Withdrawal Agreement’s provisions on Citizens’
Rights. All EU nationals resident in the UK on the basis of the Withdrawal
Agreement are in effect still here under the rules set out in the Citizenship
Directive. A key difference between now and then, however, is that as a policy
choice, the UK government chose not to require economically inactive EU
nationals who wished to apply for ‘Settled Status’ under the Withdrawal
Agreement to hold comprehensive sickness insurance: five years of residency in
the UK while having sufficient resources was all that was required.
If this seems generous, the sting
is once more in the tail, because these EU nationals with ‘settled status’
nonetheless need to demonstrate they held CSI during any periods they resided
in the UK under EU law (rather than the ‘Settled Status’ scheme) – so, any time
before they applied for either
‘Settled Status’ or ‘Pre-Settled Status’. There are thus inevitably a number of
EU nationals in the UK who have lived here for far longer than six years, but
who nonetheless are not able to apply for UK citizenship because of an
administrative requirement covering their pre-Brexit
residency that the CJEU has now declared incompatible with EU law.
Can VI help them? Opinions are bound to differ here as well. One
possible argument for the UK government to make here is that citizenship law is
outside of EU competences in a very general sense, and so the UK asking EU
nationals to have CSI is simply not something that the Withdrawal Agreement
addresses. It might as well ask EU nationals to dance the hokey cokey: that,
too, is outside of what the EU can control.
However, it is also arguable that
‘CSI cover’, as the UK demands it of EU nationals in order to naturalise, is an
EU law concept that is covered by the Withdrawal Agreement, and therefore must
be interpreted in line with the CJEU’s case law—bringing this particular dimension
of the administrative dimension to UK nationality law within the scope of EU
law. If the UK government were insistent that EU nationals could only
naturalise if they had held some sort of non-NHS health insurance, the fix
would be simple: just call it something else but require that EU nationals held
it anyway, as retrospective (or ex post facto) legislative activity is
perfectly possible under UK law. This would mean that those wanting UK
citizenship would simply have to get whatever non-NHS comprehensive sickness
insurance cover is, as so many before them did, and wait several more years in
order to put in their application.
VI and Northern Ireland?
One further final ‘Brexit’
dimension that has to be considered in light of VI is how the judgment will work not in the UK generally, but
specifically in Northern Ireland. As has been set out in a great many pieces of
academic writing and commentary since 2015, the ‘Brexit’ that Northern Ireland
is experiencing is distinct from the one that Great Britain has achieved, and
there are particular dimensions of the Protocol on Ireland/Northern Ireland
(Protocol) that remain unclear but are worth exploring in light of this
judgment.
Key is Article 2 of the Protocol,
of which the relevant parts read:
The United
Kingdom shall ensure that no diminution of rights, safeguards or equality of
opportunity, as set out in that part of the 1998 Agreement entitled Rights,
Safeguards and Equality of Opportunity results from its withdrawal from the
Union, including in the area of protection against discrimination, as enshrined
in the provisions of Union law listed in Annex 1 to this Protocol, and shall
implement this paragraph through dedicated mechanisms.
There has been significant debate
as to the scope of this ‘no diminution’ commitment. In terms of concrete
‘rights’ protected, the evidence to
the Lords Committee on the Protocol has suggested that there are no clear
limitations to the GFA concepts of ‘right, safeguard or equality of
opportunity’— the GFA at best sets out a non-exhaustive list of examples.
Of course, Article 2 of the
Protocol only applies to a diminution
of rights that followed from Brexit, and so the likely way in which any cause
for action on the basis of VI is
linked to Article 2 is via remedies. Given that the EU (Withdrawal) Act 2018 will end all possibility of state liability claims in relation to pre-Brexit breaches of EU made law by the UK at the end of 2022, it appears clear that there will be a diminution of rights here (eg, right to an effective remedy) and that that diminution has been a direct consequence of Brexit (many thanks to Dr. Eleni Frantziou for pointing this out).
This consequently
would suggest that while EU nationals living in Great Britain who were denied, for example, benefits or citizenship
because of the CSI requirement, may fall between the cracks created by Brexit,
in the absence of a ‘willing’ judiciary, EU nationals living in Northern Ireland look like they might have a
further shot at a successful claim even if they do not 'get it in' before the end of 2022. Their argument would be that a violation of EU law pre-Brexit should
result in undiminished state liability
for the UK post-Brexit because of Article 2 of the Protocol. But there, too, a judiciary looking to give Article 2
of the Protocol a broad meaning is a prerequisite for a result, and so it is
far from obvious that anyone in the UK will experience the effects that VI would
have had if the UK were still a Member State unless they get in a claim for damages before the end of this year.
Conclusion
The Commission was too worried to
pursue the matter in 2012, and the CJEU seemed to feel confident enough to rule
on what the NHS actually does only in 2022, after the UK left the EU, and when
the ruling would probably not cause a shockwave anymore. That assessment might be slightly misplaced, however. If the above
interpretation of the effects of VI in
the post-Brexit UK legal landscape is correct, the CJEU may have done just enough to still give EU nationals a surefire remedy for the wrongs they experienced for the wrongs they experienced if they leap on this judgment - and at least several routes by which they can try to attain a remedy beyond 2022. Given the general politics surrounding Brexit even now that it is supposedly 'done', one can only imagine how this will go down in Westminster.
Photo credit: Matt
Brown, via Wikimedia Commons
