RN (Algeria) & Anor v Secretary of State for the Home Department

A court should await a pending ruling of the Court of Justice where the same question arises in related proceedings. A preliminary reference requires a concrete issue joined in the litigation. Article 234 does not permit references based on hypothetical questions that might arise in an unspecified future case. The Court’s practice direction concerning questions of general interest likewise applies only to questions concretely arising in proceedings. A separate reference concerning third-country national family members was therefore premature where no party disputed that their position was presently the same.

RN (Algeria) and OP (Colombia) appealed from the Asylum and Immigration Tribunal. Both appeals concerned when time began to run for calculating a right of residence under European legislation that had been, or should have been, transposed into domestic law. The Court of Appeal agreed that both matters should stand over pending the Court of Justice’s ruling on the referred question in Secretary of State for Work and Pensions v Lassal [2009] EWCA Civ 157.

OP also sought a further reference concerning the application of the eventual ruling to third-country nationals who were family members of an EU national. The central issue was whether that proposed question had arisen concretely in the litigation.

1. Disposition. The applications to stay the matters of RN (Algeria) and OP (Colombia) were granted pending the outcome of Secretary of State for Work and Pensions v Lassal [2009] EWCA Civ 157, with liberty to apply. OP’s application for a further reference was refused.
2. Requirement of an actual issue. Article 234 of the Treaty gives the Court of Justice jurisdiction to give a preliminary ruling where a question is raised. That requires more than counsel proposing a question which might arise in a future case. A question arises when an issue is joined about it. The court therefore cannot refer a hypothetical question concerning an unspecified future dispute.
3. Third-country national issue. The proposed question concerning third-country nationals who are family members of an EU national had not arisen. Although each case would depend on its facts and the Secretary of State could reserve the factual position in a future case, it was not presently suggested that such family members had different rights from EU nationals for the purposes of the Lassal question.
4. Practice direction. Paragraph 13 of the European Court’s practice direction, concerning the usefulness of a reference on a new question of general interest for uniform application of Community law, did not extend the jurisdiction to hypothetical questions. It applied only to questions which had concretely arisen in litigation.
5. Additional observation and costs. Elias LJ noted that the issue might already be before the Court of Justice in McCarthy v SSHD [2008] EWCA Civ 641, although the reference in that case had not been seen. This did not alter the conclusion that the present case was unsuitable for an immediate reference. The Secretary of State was awarded the costs of OP’s application from the Legal Services Commission; there were costs in RN’s appeal, and publicly funded costs were to be subject to detailed assessment under paragraph 15 of the Community Legal Service (Costs) Regulations 2000.

1. Court of Appeal (Civil Division) — The applications for stays in both matters were granted pending the Court of Justice’s decision in Secretary of State for Work and Pensions v Lassal [2009] EWCA Civ 157, with liberty to apply. OP’s application for a further reference was refused.
2. Asylum and Immigration Tribunal — The appeals originated from proceedings bearing AIT Nos IA009532007 and IA166562007. No separate citation for the Tribunal decisions was stated.