The government has waivered on letting EU nationals stay after we leave the European Union. Many believe they should stay on the basis they were already here and this is sound except for one small issue: many will not have been paying health insurance while studying here.

Many more may believe as spouses, or family members of EEA nationals, that the NHS is sufficient cover for their health needs: it isn’t and never has been. The Bow Group has argued before the current reciprocal arrangements with EU member states needs a review no matter how we leave and clarity over what covers Comprehensive Sickness Insurance Cover (CSIC).

Given EHIC is issued by the host nation and not the home nation in many cases, and if only for three months emergency cover, it cannot credibly be considered CSIC. Nor too can the NHS, for which ordinary residence rules apply, and that EEA nationals enjoy Freedom of Movement on the basis they do not become a burden on the host country. This was recently upheld in: Ahmad v Secretary of State for the Home Department.

I should further point out given their nature, zero-hours contracts can mean workers pay essentially no tax on their employment and when this is true why should they be considered more favourably than students who are in many cases paying fees?  This is not unreasonable. The UK Government under Duncan Smith introduced minimum earnings thresholds specifically to:

“show they are undertaking genuine and effective work in the UK an EEA migrant will have to show that for the last 3 months they have been earning at the level at which employees start paying National Insurance. This is £150 a week – equivalent to working 24 hours a week at National Minimum Wage. An EEA migrant who has some earnings but doesn’t satisfy the minimum earnings threshold, will be assessed against a broader range of criteria to decide whether they should still be considered as a worker, or self-employed.”

The UK Government goes on to make clear:

“Under EU case law, work must be ‘genuine and effective’ and not on so small a scale to as to be ‘marginal and ancillary’ – however there is not clear definition for what this means. Today’s measure will bring greater clarity and robustness to decision-making in this area.”

So what should we do in reviewing applications to remain by such EEA nationals? A narrow construction could mean they simply are deemed ineligible to remain as they have not purchased CSIC before now. It would be argued fairer however to require the purchase of comprehensive private medical cover now and have the EEA nationals pay a fee to compensate for their lack of cover to date.

This is not a difficult exercise but it is imperative government makes sure that the UK taxpayer and NHS is protected while we ensure to act in good faith regarding EEA nationals living here prior to the referendum to maintain their rights to plan their future in this country.

Dr. Jon Stanley is Health Research Fellow at the Bow Group, a Junior Doctor and a Member of the Royal College of Surgeons