Teixeria v London Borough of Lambeth

At the permission stage, an issue concerning the effect of Regulation 1612/68, art 12, is not acte claire where it may confer a right to remain on a child’s primary carer. Where that issue may determine the appeal, the court may grant permission and list the matter promptly to consider a reference to the European Court of Justice. The underlying immigration and self-sufficiency questions need not be finally resolved at that stage.

Maria Teixeria’s application for homelessness assistance was rejected by the London Borough of Lambeth because she was subject to immigration control. The reviewing officer found that she was the primary carer of a child who was a national and in full-time education in the United Kingdom. On appeal from Lambeth County Court, the central issues were whether art 12 of Regulation 1612/68 applied to those circumstances and whether dependence on public resources prevented qualification. The Court of Appeal granted permission and directed a prompt further hearing to consider a reference.

Appeal granted. Lord Justice Stanley Burnton did not finally determine the substantive effect of art 12 of Regulation 1612/68.

1. The court considered that the applicability of art 12 was not acte claire. The issues included whether it applied where the primary carer was herself an EEA national and whether dependence on public resources affected the position.
2. It was arguable that, if the child had a right under art 12, the primary carer might have a corresponding right to remain free from immigration control so that the child’s right was practical rather than illusory.
3. There was also an argument that repeal of other provisions and a subsequent regulation imposed a self-sufficiency requirement, which the appellant could not satisfy. That issue remained unresolved.
4. Given the clear facts, the relatively clear issues of European law, the frequency of the situation and its implications beyond homelessness assistance, the court considered that the matter should be considered promptly for reference to the European Court of Justice. The Secretary of State was joined as second respondent, and the case was directed to return on 15 August 2008. The court contemplated that a court of two judges would be sufficient.

• Court of Appeal (Civil Division): Permission to appeal was granted. The court directed a prompt further hearing and considered a possible reference to the European Court of Justice.
• Lambeth County Court: His Honour Judge Welcham had rejected the application for homelessness assistance on the basis that the appellant was subject to immigration control. The lower-court citation was not stated in the judgment.