Insured status under the 2003 Act

UK citizens who are living in Spain with a permanent residence permit may have ‘insured status’ under Article 3. For instance, UK citizens who worked in Spain as employees or were self-employed and are affiliated to the Spanish social security system,Footnote ⁶ and their families as defined in Spanish law, will be entitled, under Spanish law, even following a ‘no-deal Brexit’, to access public health care free of charge, on the same basis as insured Spanish citizens. Pensioners with annual incomes of over €100,000 pay 60% of prescription charges, capped at €60 a month, with lower co-payments and lower caps for less wealthy pensioners (UK Government, 2014). Their health care is funded through their contribution to the Spanish social security system. Provided their residence entitlements continue, their position will not change. It may be, however, that they have to reapply for a Spanish residence permit, as the basis for their current residence (nationality of an EU country) will no longer apply.

These entitlements extend also to their resident spouse, former spouse and children under 26 or older with a disability. Currently, the ‘members of their family’, as defined in EU law,Footnote ⁷ and ‘survivors’ of such insured UK pensioners are entitled to access the Spanish National Health Service (NHS) under EU Regulation 883/2004. But some family members, such as dependent parents, do not fall within the 2003 Act, so will cease to be covered.

Retired British people living in Spain, who have not worked in Spain, and are not affiliated to the Spanish social security system, but who have worked and paid national insurance contributions in the United Kingdom are also currently entitled to access the Spanish health care system under Regulation 883/2004, as if they were insured Spanish citizens. The Regulation applies to all EU nationals resident in the EU who are or have been covered by one or more national social security systems of EU countries, to ‘members of their family’ and their ‘survivors’.Footnote ⁸ In order to show that they fall within the Regulation, and satisfy administrative practices, UK citizens must have a permanent Spanish residence permit. For those individuals, the Regulation currently gives access to health care to those within its scope – including pensioners and their familiesFootnote ⁹ – as if they were socially insured in Spain.Footnote ¹⁰ Under a ‘no-deal Brexit’, Regulation 883/2004/EC will cease to apply to British citizens. Their national insurance contributions will no longer lawfully earn them the right to access health care in Spain. Equally it is possible that their residence entitlements will no longer be secure.

Under the Spanish Cohesion and Quality of the National Health System Act 2003, the Regulation 883/2004 regime is also applied to citizens who have contributed to social security schemes of an EEA country or Switzerland. In the now extremely unlikely event that the UK/R-EU future agreement includes EEA membership, the position of retired UK citizens resident in Spain would also not change in terms of access to health care.

Citizens of other countries, if they are authorised to reside in Spanish territory, ‘may be insured as long as they prove that they do not exceed a statutory income limit’.Footnote ¹¹ In this case, they fall within the scope of the 2003 Act, and are entitled to Spanish health care. This is the position UK nationals will be in following a ‘no-deal Brexit’. The statutory income limit was set at €100,000 in 2012.Footnote ¹² This is already quite high [the average income of a UK pensioner under age 75 is just over £18,000 (Department for Work and Pensions, 2016) (c €21,000) though pensioners who retire outside the United Kingdom are probably wealthier than those who remain in the United KingdomFootnote ¹³ ]. And moreover, the Spanish Constitutional Court has recently declared the limit to be unconstitutional.Footnote ¹⁴ If no income limit applies, the de jure position of EU/EEA citizens and non-EU/EEA citizens under the 2003 Act is the same, suggesting that the entitlements of access to health care would also remain the same under a ‘no-deal Brexit’, under which UK nationals will be non-EU/EEA citizens.

Nonetheless, there are significant de facto differences in their positions. These concern the administrative formalities with which citizens must comply in order to access the Spanish health care system.

In order to fall within the scope of the 2003 Act, it is necessary to provide evidence of permanent residence in Spain. EU/EEA citizens are entitled to a permanent residence permit on proof only that they have sufficient economic resources to meet the costs of living in Spain and that they enjoy coverage under a public or private health insurance system (with a ‘basket of services’ equivalent to those of the Spanish NHS). At the moment, that latter requirement is satisfied by reference to the UK NHS and the Regulation 883/2204 system, relying on the S1 (previously E-106, E-109, E-120 and E-121) form. But it is much more difficult for non-EU/EEA citizens to obtain a permanent residence permit in Spain, since they must also acquire a work permit at the same time. In the event of a ‘no-deal Brexit’, save perhaps a tiny minority, acquiring a work permit will simply be impossible for the ordinary retired UK citizens who live in Spain.

Moreover, under the administrative formalities surrounding the 2003 Act, non-EU/EEA citizens must also prove that they enjoy health coverage by their affiliation to the social security system of a state with a bilateral reciprocal agreement with Spain. Currently Spain has ~20 international treaties on social security issues. However, the ‘right to export’ national health coverage, so that patients are entitled to receive health care according to the Spanish NHS ‘basket’, is explicitly recognised in only seven cases (treaties with Andorra, Brazil, Chile, Ecuador, Morocco, Peru and Tunisia) (Spanish Court of Auditors, 2012). Otherwise, foreign nationals will receive only the health care benefits allowed by their home country (generally less than the Spanish ‘basket’). In any event, in the absence of such an agreement with the United Kingdom, non-EU/EEA citizens would be required to be covered by private health insurance, at their own expense. The administrative formalities necessary to secure rights under the 2003 Act, Article 3 (3) will in practice exclude UK nationals from access to the Spanish health care system following a ‘no-deal Brexit’.

The residual provision of the 2003 Act, Article 3 (5), permits those who are not insured under Article 3 (2) and are not beneficiaries under Article 3 (3) to access Spanish health care ‘by paying the corresponding fee derived from the signing of a special agreement’. This is an individual agreement between the Spanish social security system and the retired person. It is administered through the Spanish autonomous communities and only covers the ‘basic basket of services’ so that patients must pay 100% of the cost of their prescriptions. In addition to this, current rates for those who are older than 65 are €1884 per annum (€157 a month). There is a much lower fee for people under 65 (€ 720 per year, €60 a month).Footnote ¹⁵ The difference is perhaps intended to have a disincentive effect for retired people.

Again, de facto administrative requirements are important. To enter into these special agreements, Spanish law requires:Footnote ¹⁶ (i) accreditation of effective residence in Spain for a continuous period of at least 1 year immediately prior to the date of the request of the special agreement; (ii) registration, at the time of submitting the application to enter into the special agreement, in a municipality belonging to the territorial scope of the corresponding autonomous community with which the agreement is reached.

We have been unable to find data on how many of these agreements are already in place. Even though standard models of such agreements are available to all interested individuals, it cannot be ruled out that following a ‘no-deal Brexit’, accessing the Spanish NHS will only be feasible at considerable expense and administrative inconvenience, with all the uncertainty associated.

Exceptional cases under the 2003 Act (emergency care)

Non-insured non-nationals, even those without a temporary or permanent residence permit, are entitled to receive health care from the Spanish NHS in three exceptional cases: health emergencies, minors and pregnant women.Footnote ¹⁷ Retired people are by definition not minors, though may have dependents living with them who are. For the narrow category of health emergencies, even under a ‘no-deal Brexit’, British pensioners in Spain will be covered, so some of the worst fears of a disorderly Brexit concerning health care – to wit, that access to critical care in the event of a health emergency will be unavailable – are misplaced.

‘Acquired rights’?

The question of whether and if so how the concept of ‘acquired rights’ in international law will apply following Brexit has been ‘beset by confusion and misinformation’ (Douglas-Scott, Reference Douglas-Scott2016). The Vienna Convention on the Law of Treaties 1969 gives ‘acquired rights’ only to states, not to individuals. Individuals may enjoy ‘acquired rights’ under ‘customary international law’. But even if the ‘right to access public healthcare’ were such a right (and it is not at all obvious that it is), the enforcement of such ‘acquired rights’ by UK pensioners in Spain would rely on Spanish legal processes. These are unlikely to recognise any such rights in Spanish law.

The very recent Spanish experience, following the significant amendment of the Cohesion and Quality of the NHS Act 2003, undertaken to respond to the economic crisis, is illustrative. Before 2012, all immigrants, both legal and illegal, were entitled to health care in Spain. After the 2012 reform of the 2003 Act, no ‘acquired rights’ were recognised for those people who were living in Spain before 2012. The reform only contained a specific clause that postponed for four months the entry into force of such a provision.Footnote ¹⁸ In the case of a ‘no-deal Brexit’, it is possible that the Spanish authorities will recognise the need for a short transitional period, not as a legal entitlement, but as a principle of administrative convenience or even kindness. But there will be no enforceable ‘acquired’ legal rights to health care except as outlined above under the 2003 Act.

The ‘right to health care’ in Council of Europe or international law?

The UN Social and Economic Rights CovenantFootnote ¹⁹ and the Council of Europe’s European Social Charter,Footnote ²⁰ to which Spain is a signatory, recognise the right to basic health care of every human being. In common with many countries, including the United Kingdom, however, Spain does not recognise even this minimum guarantee (‘basic health care’) as an enforceable right. The Spanish Constitutional CourtFootnote ²¹ held that these UN-European Social Charter provisions are non-binding rules and should be interpreted as mere aspirations.

Equally, reliance on the European Convention of Human Rights, Protocol 1, Article 1 on the right to ‘peaceful enjoyment of one’s possessions’ is highly unlikely to be successful. In some circumstances, social security entitlements can be ‘possessions’ in this context.Footnote ²² But in Ramaer and van Willigen,Footnote ²³ the European Court of Human Rights found that the expectation, following changes to the Netherlands health system in 2006, that a Netherlands national resident in Spain would continue to enjoy health insurance under the Netherlands system, does not constitute a ‘possession’. The Strasbourg court distinguished other cases concerning social security benefits, noting that the applicant’s expectation was based not on a legal provision or act, but a hope. The Spanish courts have not explicitly ruled on whether a Spanish refusal of health care to non-EU nationals falls within the European Convention on Human Rights and Fundamental Freedoms, but if they are faced with such a claim, there is no reason to expect a difference of approach to that of the Strasbourg court. The view that there might be a legal entitlement to access the Spanish health care system outside of the requirements of the 2003 Act, in a post-‘no-deal’ Brexit position, cannot be described as anything stronger than a ‘hope’: it is unlikely to be deemed to be a ‘possession’.

Differences in the autonomous communities?

The Cohesion and Quality of the NHS Act 2003 is a national law which contains common legal standards for all the Spanish autonomous communities. Nonetheless, in general, health policy is a devolved power in Spain, so it is possible that different autonomous communities may adopt different approaches. Indeed, some regions, such as Cantabria, Valencia, the Balearic Islands, Aragon, Navarra, Catalonia and Euskadi, have adopted their own regional laws in order to assure access to health care regardless of the administrative situation of patients, including foreign patients. However, the national government has appealed these regional rules, arguing that health care policy concerning foreigners is an exclusive national power. It is likely that the Constitutional Court will uphold the appeals.