Secretary of State for Work and Pensions v GS (PC) [2016] UKUT 394 (AAC), 16 August 2016 The claimant was an Italian National who had lived and worked in the UK for several periods over many years. During his most recent period of residence from 2004 he had lived off savings and stayed with his son, a British/Italian dual national. A claim for pension credit was rejected on the basis he had no right to reside.
Secretary of State for Work and Pensions v GS (PC) [2016] UKUT 394 (AAC), (Judge Ward), 16 August
In Secretary of State for Work and Pensions v GS (PC) [2016] UKUT 394 (AAC), (Judge Ward) the claimant was an Italian National who had lived and worked in the UK for several periods over many years. During his most recent period of residence from 2004 he had lived off savings and stayed with his son, a British/Italian dual national. A claim for pension credit was rejected on the basis he had no right to reside.
On appeal, a First-tier Tribunal held that he had acquired a right of permanent residence under article 16 of EC Directive 2004/38, based on a period of residence of four years ten months from January 2004 as a self-sufficient person and a further two months residing as a jobseeker.
For the requirement for comprehensive sickness insurance cover (“CSIC”) under Art 7 of the Directive, the tribunal relied on the claimant’s possession of a European Health Insurance Card (“EHIC”) issued in Italy.
The Judge noted that if the claimant's residence in the UK only amounted to a ‘stay’ then it may be possible for the UK government to seek reimbursement of NHS treatment costs from Italy and consequently the claimant would be accepted as having CSIC. If, however, the claimant was accepted as ‘habitually resident’ in the UK, having its specific meaning in EU law, the UK would be the competent state for paying medical costs and the EHIC would be of no effect in establishing he had CSIC (C-255/13 I v Health Service Executive considered).
On the facts in this case, the claimant’s residence in the UK did not amount to a “stay” and so he could not rely on the EHIC to meet the CSIC requirement.
Judge Ward also rejected the argument that it would be disproportionate to enforce the requirement for CSIC against the claimant so as to deprive him of a right of permanent residence, noting that since the case of Mirga v SSWP [2016] UKSC 1, “the window through which a claimant has to squeeze is a very narrow one”.
