Oguz v Secretary of State for the Home Department

A binding domestic authority may prevent the Court of Appeal from allowing an appeal on the existing state of the law. That does not prevent the court from referring the underlying question to the Court of Justice of the European Union. Where fuller submissions establish that the court has power to make such a reference, and referral is appropriate, an earlier order dismissing the appeal may be revoked and replaced by an order adjourning the appeal pending referral.

The appeal was brought from the Asylum and Immigration Appeal Tribunal in case IA/18188/2008. On 16 March 2010 the Court of Appeal formally dismissed the appeal and refused permission to appeal to the Supreme Court, relying on the existing binding authority in Sonmez [2009] EWCA Civ 582. Following further submissions, the court reconsidered whether it had power to refer the underlying issue to the Court of Justice of the European Union, in the light of Kondova v United Kingdom [2001] ECR I-6427 and the question whether the answer was acte clair.

1. Disposition. The judgment given on 16 March 2010 was revoked and replaced. The appeal was adjourned pending referral to the Court of Justice of the European Union. Counsel were directed to agree a draft question and provide it to the court by 26 March 2010.
2. Effect of existing authority. The appellant’s counsel properly conceded that, in the existing state of binding authority, the appellant could not succeed at Court of Appeal level. The immediate basis for the concession was the majority decision in Sonmez [2009] EWCA Civ 582. The court did not determine the underlying merits issue at this stage.
3. Referral power. The court had initially acted on incomplete information about its power to make a referral. After receiving written submissions from both parties, it was satisfied that it possessed the full power of referral at this level and that exercising that power was appropriate.
4. Underlying jurisprudence. The jurisprudence behind Sonmez, including the decision in Kondova v United Kingdom [2001] ECR I-6427, had become sufficiently problematic to justify further consideration by the European court. The Court of Appeal therefore preserved the issue for referral rather than allowing the earlier dismissal to stand.
5. Lord Justice Rimer and Lord Justice Laws agreed with Lord Justice Sedley’s judgment.

• Court of Appeal (Civil Division) The court initially dismissed the appeal and refused permission to appeal to the Supreme Court on 16 March 2010. In the present judgment, reported at [2010] EWCA Civ 311, it revoked and replaced that order and adjourned the appeal pending a European reference.
• Asylum and Immigration Appeal Tribunal Decision under appeal in case IA/18188/2008. The tribunal’s disposition is not stated in the judgment.