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Forum Home  →  Discussion  →  Housing costs  →  Thread

Right to reside and PR for self sufficient student

LJF
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Benefits caseworker - Manchester Citizens Advice Bureau

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Client Swedish national. Been here since august 2011 doing PhD funded by Sweden. Had ehic card issued before came to uk. Finished PhD and applied for jsa and hb. Classed as job seeker so no hb. Applied for permanent residency. waiting. I was under the impression that he needed comp private medical insurance to get hb. After research it is unclear if Swedish issued ehic card is sufficient for a self sufficient student argument. I have seen things stating it is if you it was issued in Sweden and you don’t intend to live in the U.K. Permanently. Thoughts ?
Thanks

HB Anorak
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Apart from anything else, is this claimant going to be excluded from HB as a full time student?  If so, self sufficiency and sickness insurance won’t help him anyway.

Assuming he gets past that obstacle, it is open to the Council to decide for HB purposes that he has a permanent right of residence without waiting for Home Office confirmation.  If he has been a self-sufficient student with a Swedish EHIC card all this time the Council should be satisfied.

Regarding the EHIC card ... say he didn’t have a permanent right of residence (which he appears to have, but just supposing he didn’t) there is a slight problem if he is relying on it to demonstrate a current right of residence for the purpose of a benefit that has a habitual residence test.  You are walking a fine line if your sickness insurance comes courtesy of a card issued by the competent state of residence yet you claim to be habitually resident in the UK.  Judge Ward recently looked at this the other way round and concluded that a claimant who is habitually resident in the UK normally cannot then rely on the EHIC card because the issuing state is no longer bound to honour it.  He did not rule out the possibility that you can be resident in two places at once, but it looks like quite an obstacle:

http://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=4945

That’s not a problem once he has a permanent right to reside, but being a full time student still might be fatal to the HB claim.

Actually, taking Judge Ward’s logic a step further, is there an issue with a permanent right of residence if you are relying on a EHIC card for comprehensive sickness cover while studying?  Have you “resided” in the host state at all, or just been “staying” here?  And if you have resided here, does that not at a stroke invalidate your EHIC card, meaning in turn that you have not resided legally for five years after all?  This is a troubling line of argument and I am not sure where it leads

[ Edited: 20 Dec 2016 at 09:57 am by HB Anorak ]
LJF
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Benefits caseworker - Manchester Citizens Advice Bureau

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thank you
he has finished his PHD now so no longer a student and so looking for work.
i can see what you mean about arguing he is habitually resident
but he is currently doing nothing so wont get HB unless can make council accept he has PR
so the question is - does he have PR if he has been a self suff student with a Swedish EHIC card for 5 yrs.
the council are saying no - they are saying he has to send proof of private medical insurance that covers emergency flight home to sweden etc.
thanks

HB Anorak
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Well I think they are wrong about that point at least: see the concession made by the Council and DWP in this case

http://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=3006

It is true that the claimant lost on the sufficient resources ground and the Judge does not clearly come out and say “the comprehensive sickness insurance concession is correct and I accept it”; but everything about the context suggests that Judge Ward is content that NHS care funded by another member state is sufficiently comprehensive to satisfy the requirement.  And then there is the Baumbast case, which the Council is possibly relying on and twisting a bit.  A side-issue in Baumbast was whether he had comprehensive sickness cover.  He did, but in Germany, and the family travelled there at their own expense whenever they needed to rely on it.  Presumably the Council is pointing to that as authority for the idea that sickness insurance is not comprehensive if it does not cover travel costs?  But your client has insurance in the UK so there is no need to travel to Sweden for treatment - the whole point of the EHIC card is that it provides cover in the host state without posing any financial burden on the host state.

But the whole EHIC v habitual residence conflict is troubling for sure.

LJF
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isn’t is causing a burden on the state though as the person is using the NHS rather than private medical care? or does the NHS claim it back from Sweden?
thanks again

HB Anorak
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Yes NHS claims it back (or could do if procedure existed): EU coordination rules make Sweden the competent state ... if that’s where he is habitually resident, which brings us back to that problem