1. Tamara Hervey, Professor of EU Law University of Sheffield
Accessing Healthcare here and abroad: how will Brexit affect treatment of visitors from the R-EU in the UK and vice versa?
Tamara Hervey, Professor of EU Law
University of Sheffield
ESRC Brexit Priority Grant ES/R002053/1

2. Who? UK citizens visiting R-EU temporarily
UK citizens resident in R-EU
R-EU citizens visiting UK temporarily
R-EU citizens resident in UK
When considering reciprocal healthcare under EU law, we need to distinguish between four main categories of people:
UK citizens visiting R-EU temporarily
UK citizens resident in R-EU
R-EU citizens visiting UK temporarily
R-EU citizens resident in UK
Each category currently enjoys rights under EU law.
Note that residual rights to emergency treatment, and some other treatments, e.g. some maternity care, are required under international (human rights) law obligations.

3. Who?
If we are talking about “visitors” (the left hand column), the key entitlements are covered by the EHIC card system. This sits within EU law which coordinates social security systems. The main idea that sits behind that complex set of rules is the portability of social security entitlements as if EU were one country in which benefits have been/are being earned.
On average, across the whole EU, half of the total number of “insured persons” living in a competent Member State has a valid EHIC. (There are big differences in coverage among Member States. In some Member States, such as Italy, the Czech Republic and Switzerland, the EHIC is issued automatically, whilst others issue it on request. Moreover, the period of validity varies significantly among Member States, ranging from six months in Poland to six years in Italy.
Most of the reimbursement claims (more than nine in ten claims) are settled between the Member State of stay and the competent Member State, and not between the insured person and the competent Member State, indicating a widespread and routinised payment and reimbursement procedure and use of the EHIC. This shows the added value of having an EHIC, namely insured persons do not need to pay upfront for the necessary healthcare, which limits the financial burden considerably.
About 0.1% of total health expenditure in kind is related to necessary healthcare treatment during a temporary stay abroad. (Jozef Pacolet & Frederic De Wispelaere, The EHIC: reference year 2015, June
There are around 27 million UK-issued EHIC card holders. (Evidence session HL Inquiry into Reciprocal Health Care, 13 Sept 2017, And the cost of EHIC to UK is around £150 million a year. UK now trying to ensure it recoups the money it is entitled to under the EU regulations. Difficulty because historically NHS not good at knowing who is using the system. (Evidence to EU Home Affairs Sub Committee, 13 September

4. What? non-discriminatory access medically necessary treatment
as if covered by host healthcare system
Details differ in each R-EU country
Full advice available country by country transparently on EU portal*.
Workers: non-discrim & portability
Retired people: S1
Family members
Full advice country by country on EU portal **
As above.
Context of UK NHS means checking entitlements difficult.
As above. UK had been unclear about whether access to UK NHS constitutes ‘comprehensive sickness insurance’ as MS are entitled to require under the free movement of citizens legislation for non-economically active EU citizens. Home Office statement on 1 March 2017.***
The details of these rights are complex, and because they are based on non-discriminatory treatment with nationals of the host state, differ from MS to MS. This is an outline. * **
***

5. How (far are we in the negotiations)?
So – if you type “mutual incomprehension” into Google, this is the fourth image you get. (It’s a picture of Theresa May discussing Brexit with business organisations.)
Very interesting insights on the general difficulties of the UK and the EU negotiators to understand each other comes from regular reporting of the ways in which Theresa May’s government appears to misunderstand both the politics and the law of the situation. Eg the Frankfurter Allgemeine Zeitung’s reports of the May/Juncker dinner on 29 April 2017 suggest that Juncker thinks May is ‘in a different galaxy’ about what is possible.
And, because of that, we don’t know what the EU/UK relationship will be in the future, or, more pressingly, whether there will be a Withdrawal Agreement at all.

6. EU negotiating position
agreed by all 27 Member States in April 2017 (
legally binds the EU Commission
includes the principles of:
‘integrity of the Single Market’ (no sector by sector deals); and
‘a non-member of the Union, that does not live up to the same obligations as a member, cannot have the same rights and enjoy the same benefits as a member’.
governance of the Withdrawal Agreement
rule-based approach
will be critical for rights of people
explicitly mentions CJEU and autonomy of EU law

7. EU and UK negotiating positions
This is what the current positions concerning Citizens Rights look like – across 14 pages – some green cells, but still lots of yellow and red ones.

8. EU and UK negotiating positions on reciprocal healthcare under the Withdrawal Agreement
‘social security coordination’ generally many green cells.
So someone temporarily in the EU (or UK) and needs to rely on EHIC on Exit Day will be able to do so under the Withdrawal Agreement (if it is agreed).
BUT ‘persons whose competent state is the UK and are in the EU27 on exit day (and vice versa) – whether on a temporary stay or resident – continue to be eligible for healthcare reimbursement, including under the EHIC scheme, as long as that position continues’ does not secure current EHIC entitlements (in left hand column above). This is reflected in the red cell immediately below.

9. BUT
So this issue is not resolved – even in terms of the Withdrawal Agreement, never mind a future EU-UK relationship.
Around 27 million people have a UK-issued EHIC card. There are around 53 million visits (for whatever purpose) a year from UK to EU; and around 25 million incoming visits (Evidence to House of Lords EU Home Affairs Sub Committee, 13 September Only around 1% of UK-issued EHIC holders make a claim in any year.
UK DoH says it wants the scheme to continue. But this doesn’t take into account the EU negotiating position, and in particular the principles of the integrity of the single market; and the ‘cake and eat it’ principle.
Evidence that there will be some groups of people who cannot get insurance at any price, or at least it will be prohibitively expensive: House of Commons Health Committee, Oral Evidence: Brexit and health and social care, HC 640 ( ), House of Commons So if future EU-UK relationship does not include reciprocal healthcare, there will be some groups of people – people with disabilities for instance, who effectively will not be able to travel to the EU.

10. DWP figures – 480K UK state pensioners in other EU MS, of whom 190K are registered for reciprocal arrangements. These people rely on the “S1” system and access the healthcare system in the host Member State as if they were resident there. The current cost to the UK is about £500 mill a year. (We get about £70 million a year income from the scheme, but of course the disparity in numbers 190K UK state pensioners under S1 scheme, whereas only 5800 pensioners from other EU countries in the UK). There is evidence that it is significantly cheaper for the UK to pay for their healthcare in the host Member States – partly because of co-payments that they have to make, partly because healthcare is cheaper, and partly because of the climate which makes chronic conditions easier to manage.
DoH says it has modelled effects of returning pensioners on NHS but stated that ‘it is not sensible to go public with DoH assessments’ at this stage (Evidence to EU Home Affairs Sub Committee, 13 September
As I said this morning (if I had time) The Nuffield Trust calculated that 190,000 British pensioners currently live in other EU countries like France and Spain and receive healthcare under the EU reciprocal ‘S1’ scheme. If they decide to return to the UK in the event that this benefit is withdrawn after Brexit, then the cost to the NHS is likely to be around £979 million – around twice the amount that the UK government currently reimburses to other EU states for their care, i.e. around £500 million net.  This calculation is based on the age profile of the people involved, and their likelihood of using healthcare. 
Around 900 extra beds, enough to fill two new hospitals the size of St Mary’s Hospital, London (see note 3), would be likely to be required if this number of British pensioners returned – but the briefing argues that unlike funding, beds and staff cannot simply be brought on-stream at will. (Dayan M (2017) Getting a Brexit deal that works for the NHS. Nuffield Trust briefing, 31 May 2017. 
Michaela Benson at Goldsmith’s project shows the distress that many of these vulnerable individuals feel (UK in a Changing Europe, as well as their resourcefulness in tackling the predicament they are in.

11. Soft brexit Hard brexit ‘Crash out’ brexit ‘EEA minus’?
Association Agreement?
Access to EU market for goods and services, and vice versa, as compliance with EU regulations continues
Could include people
If limits on people, what is quid pro quo? Services? Capital/FDI?
Could secure continued access to EU regulatory networks and systems
Could include access to EU research funding
No enforceability of individual rights
No supranational court
Hard brexit
FTA (DCFTA?)
EU-CETA model?
Detailed sector by sector negotiation
Requires transitional arrangements
May not cover people at all
Services?
FDI?
May involve harmonised regulation or may not
Possibly involves continued access to EU regulatory networks, systems and other resources
‘Crash out’ brexit
No agreement
EU-UK trade relationships based on WTO law
Maximum uncertainty
People are covered only by UK immigration law
Products from UK access to EU market only if EU law compliant
Products from EU access UK market if UK law compliant
We need to bear in mind the possible futures here – whether we have a Withdrawal Agreement at all, and what the future EU-UK relationship looks like.
Of course, an ‘exit from Brexit’ would keep the rights that we currently have, and secure them for future generations, future pensioners, future travellers (for work and pleasure).
A ‘soft Brexit’, where the UK agrees to comply with EU internal market law, could include all existing rights. But it would involve the UK agreeing access to the single market (the integrity of which is a key principle of the EU’s position) for goods, services, capital, and – crucially – people. This looks like a sticking point for HMG as ‘control over immigration’ has become a touchstone of the way that the EU referendum result is now being interpreted.
A ‘hard Brexit’, where there is a negotiated Withdrawal Agreement, and then a future EU-UK relationship based, say, on the EU-Canada trade agreement, might not involve any aspects concerning free movement of people. Where the UK currently has reciprocal healthcare arrangements (eg with New Zealand) they are much less extensive than the current EU-UK arrangements.
“New Zealand has a reciprocal healthcare agreement (external link) with the United Kingdom for the provision of urgent medical treatment for emergency conditions that occur while in the UK. The agreement covers anyone who is ordinarily a resident and a citizen of New Zealand – regardless of nationality – and treatment will be provided on the same terms as for UK residents.
This agreement remains in place, but New Zealanders staying in the UK on a visa for more than six months will be required to pay an immigration health surcharge as part of their visa application from 6 April Please visit  link) for further information.  
New Zealanders are further advised that if visiting the UK on a visitor visa valid for 6 months or less, this National Health Service care will not extend to routine, non-emergency treatment from a GP or dentist. You will normally have to pay for these services, as well as a charge for any medicines you need. If you have come to the UK specifically for medical treatment you will have to pay for it.” (see
And under a ‘crash out Brexit’, there isn’t even a Withdrawal Agreement, and so on Exit Day UK nationals in the EU would not be guaranteed any access to healthcare under the host country’s system, expect that covered by that country’s legal system for non-EU nationals. There are some minimal rights, eg to access to treatment in the case of medical emergency, under international law. There’s no enforcement system for them (unlike in EU law), so no guarantees.