A Dutch woman who has lived with her British husband in Devon for 30 years has learned from the immigration minister, Robert Goodwill, that she may not have the right to stay in the country after Brexit. Jet Cooper and her husband, who has been diagnosed with a serious illness, asked their MP, Sarah Wollaston, to seek clarification from Goodwill about her right to remain in Britain after the EU referendum.
The couple were alarmed to discover, via two three-page letters from Goodwill, that Jet may not be eligible to remain in the country because she had not taken out private health insurance and because she may not have earned sufficient revenue in the years during which she freelanced.
Goodwill confirmed in a letter to Wollaston that EU citizens who were “self-sufficient” would not qualify for permanent residency (PR) unless they had “comprehensive sickness insurance cover and enough financial resources to support themselves”.
The letters, which her husband, a children’s author, described as “chilling”, came as a shock, as Jet’s rights had never been questioned in the 30 years she lived in the UK bringing up their three children.
“We want to be lawful, but we are in an impossible position. Patrick has recently been diagnosed with a serious medical condition and is dependent on the NHS and can’t just leave the country. Do they want to split our family?” said Jet, 55. “Anyway, our home and our community is here and has been for 30 years. We’re not going anywhere.”
Jet is one of 3 million EU citizens settled in the UK whose futures have been thrown into question after Brexit. Last week the government reiterated a desire to assure EU citizens of their rights following the vote to leave the EU, but said it could not because they were “negotiating capital” in Brexit talks.
“I started looking at citizenship after the referendum and discovered this new requirement for a permanent residency card. I assumed it was based on years resident here, but then I found out I could not apply anyway because of the CSI [comprehensive sickness insurance], and because I haven’t worked enough,” said Jet.
“I am self-employed and have been paying National Insurance contributions, but I don’t think I earn enough to qualify for a PR card through the employment route,” she said.
Jet said there was nothing in her 30 years here, raising three children, now aged 28, 27 and 17, that led her to believe she was in the UK illegally. “I find it very odd that no one has ever said anything about this before, but if Robert Goodwill is correct, they could have chucked me out any time in the last 30 years,” she said.
Jet and her husband’s concerns about her legal position were raised after the referendum. They had thought that Jet, as the spouse of a British citizen who has lived in the UK for three decades raising British children, would get citizenship without a hitch. But she learned that since November 2015, all EU citizens applying for citizenship have to first apply for a permanent residency (PR) card, something that previously only applied to non-EU citizens.
Her husband Patrick, 67, told Wollaston that he believed the CSI rule was a “deliberate trap” designed to prevent EU citizens applying for British citizenship.
The CSI rule is mandated by a 2004 EU directive and was designed as a barrier against benefit tourism. But the blanket regulation failed to take account of the fact that Britain’s health service is not paid for by insurance but directly from tax.
“A lot of people since Brexit have been talking about getting the UK to waive the CSI requirement, but that is not what it is about. It is about the UK recognising the NHS as comprehensive sickness insurance,” said immigration lawyer Colin Yeo. “The commission think the NHS does constitute insurance as you are entitled to healthcare, but the Home Office is fighting it tooth and nail.”
The question of whether the NHS suffices as health insurance is now the subject of potential legal action. In 2012 the European Commission opened an “infringement procedure” against the UK government, stating that its failure to recognise the entitlement to NHS treatment as sufficient insurance “breaches EU law”.
“I know you are supposed to know the law, but I find it very very strange to find out now at this stage that I could be here unlawfully. If I had known about this to begin with, we would have made different choices,” said Jet.
Cooper is not the only one concerned. A 60-year-old Greek woman, who is married to a neurology consultant in the NHS and has been in the country for the past 20 years, contacted the Guardian because she fears she may also be at risk because she did not have CSI. “I went to the Citizens Advice Bureau about six years ago when Greece was about to exit the EU. They said I need not do anything apart from keep my marriage certificate safe. There was no mention of CSI at all,” said the woman, who asked not to be named.
Wollaston, the MP for Totnes, said the plight of EU citizens like Cooper should be the government’s top priority after the triggering of article 50. She is supporting a petition calling for the reform of the CSI requirement.
After the referendum, Jet wrote to David Davis, secretary of state for exiting the EU, to outline her plight and asked the government to consider repealing the British nationality (general) (amendment no 3) regulations 2015, which made a PR card a prerequisite of citizenship.
In the correspondence, which went through Wollaston’s office, Goodwill responded on Davis’s behalf, telling Jet that the PR card was not an “onerous” obligation. Cooper replied: “It turns out, in our case, to be an impossible one.”
In a second letter, Goodwill points out that if Jet Cooper did not meet the conditions for the PR card, she could leave the country and make an application for “entry clearance from outside the UK”. She might also be able to qualify under a 10-year immigration rule, but she would have to demonstrate why it was impossible to enjoy family life in another country.
The couple got little comfort from either of Goodwill’s letters. Although Jet does not think the Home Office will come knocking at her door, she is very concerned about her future. “My main worry is that if we go on holiday and when we come back, that if I don’t have anything to prove that I am here legally, they will make my life difficult,” she said.
Immigration barrister Jan Doerfel said: “The immigration minister’s response fails to set out important options for EU long-term residents and their family members to regularise their status [if they do not qualify under EC law], including the option for any person who has lived in the UK for at least 20 years (or less if their case is ‘very compelling’, or if their return would result in very significant obstacles to their integration into their country of origin) to apply to remain in the UK without having to leave the UK.”
He said people who had been in the country for decades like Jet Cooper may have options open to them under domestic, EU or human rights law, and that they should get independent legal advice on this.
A Home Office spokesperson said: “This government has been clear, that we want to protect the status of EU nationals already living here and the only circumstances in which that wouldn’t be possible is if British citizens’ rights in European member states were not protected in return.
“The rights of EU nationals living in the UK remains unchanged while we are a member of the European Union. EU nationals do not require any additional documents to prove their status.”
