Teixeira v London Borough of Lambeth & Anor

Where an appeal depends on unresolved questions concerning EU-law interpretation which are necessary to determine the result, the Court of Appeal may refer those questions to the Court of Justice for a preliminary ruling. The reference should identify the relevant facts and precise questions. The court did not decide whether Article 12 of Regulation (EEC) No 1612/68 operated independently of Directive 2004/38/EC, or whether self-sufficiency, the timing of the parent’s work, or the child’s age affected a claimed derivative right of residence. It referred those questions, stayed the appeal and reserved costs.

The appellant, a Portuguese national, sought homelessness assistance from the London Borough of Lambeth under Part 7 of the Housing Act 1996. Lambeth found her ineligible because she lacked a qualifying right to reside. On review, and then on appeal under section 204, HHJ Welchman upheld that decision on 16 November 2007.

Before the Court of Appeal, the appellant accepted that she was neither a current nor retained worker and had no permanent right of residence. She relied solely on a derivative right said to arise under Article 12 of Regulation (EEC) No 1612/68 because she was the primary carer of a child in education. The court considered that the questions concerning the interaction between Article 12 and Directive 2004/38/EC required a preliminary ruling.

1. Reference required. The appeal was not finally determined. The appellant accepted that she could not rely on worker status, retained worker status or permanent residence. Her only claimed basis of residence was Article 12 of Regulation (EEC) No 1612/68, as interpreted in Baumbast and R v Secretary of State for the Home Department C-413/99.
2. The Court of Appeal considered that questions concerning the interaction between Article 12 and Directive 2004/38/EC were necessary to enable it to give judgment. The questions included whether Article 12 could provide an independent or derivative right of residence despite the Directive’s residence conditions, whether sufficient resources and sickness insurance were required, whether the timing of the parent’s employment mattered, whether the right ended when the child turned eighteen, and whether the implementation date of the Directive affected the claim.
3. The court adopted the same procedural approach as in LB of Harrow v Ibrahim and another [2008] EWCA Civ 386. It restricted the factual statement to matters relevant and necessary for the Court of Justice to answer the questions. The agreed order and questions could be settled without a further hearing.
4. Under Article 234 EC of the Treaty, the questions were referred to the Court of Justice of the European Communities. The reference was to be joined with the reference in Ibrahim. The proceedings were stayed pending the preliminary ruling or further order, and costs were reserved.

1. Court of Appeal (Civil Division): On 10 October 2008, the court referred questions concerning Article 12 of Regulation (EEC) No 1612/68 and Directive 2004/38/EC to the Court of Justice, stayed the proceedings and reserved costs.
2. Lambeth County Court: HHJ Welchman dismissed the appellant’s appeal under section 204 of the Housing Act 1996 on 16 November 2007.