NS, R (on the application of) v Secretary of State for the Home Department

Where an appeal raises unclear questions of EU law with broader significance, the Court of Appeal may refer those questions to the Court of Justice of the European Union and stay the remaining proceedings. Closely interrelated human-rights issues may also be stayed where pending Strasbourg proceedings are likely to assist. The court recorded that the Secretary of State no longer supported the lower court’s conclusion that Charter rights could not be relied on against the United Kingdom. It also recorded the position that discretion under Article 3(2) of the Dublin Regulation falls within the scope of EU law and is subject to the Charter.

The appellant challenged the Secretary of State’s proposed transfer under the Dublin Regulation, raising EU-law and European Convention on Human Rights issues. The appeal was brought from the judgment of Cranston J in the Queen’s Bench Division. The Court of Appeal was due to hear the appeal, but concluded that the EU-law questions should be referred to the Court of Justice of the European Union, particularly because the questions were unclear, a Grand Chamber case was imminent, and many similar cases were pending. The court stayed the balance of the proceedings, including the Convention issues, pending the reference and related Strasbourg developments.

The Court of Appeal adjourned the appeal for a reference to the Court of Justice of the European Union and stayed the remaining proceedings.

1. Reference of EU-law questions. The court considered that the EU-law issues were insufficiently clear and that a reference would avoid duplicative proceedings and delay, particularly since any further appeal to the Supreme Court would likely require a reference. The wider importance of the issues, including their relevance to approximately a thousand similar cases across the European Union, supported an early reference.
2. Stay of human-rights issues. The European Convention issues were stayed because they were inevitably interrelated with the EU-law questions and pending proceedings before the Strasbourg court were likely to assist.
3. Charter position. The court recorded that the Secretary of State no longer supported Cranston J’s conclusion that rights in the Charter of Fundamental Rights could not be relied on against the United Kingdom. The respondent accepted, in principle, that the Charter could apply, and contended that the Protocol explained its effect rather than preventing its application.
4. Article 3(2) discretion. The court recorded that the Secretary of State did not contend that exercising the discretion under Article 3(2) of the Dublin Regulation fell outside the scope of EU law. The respondent therefore accepted that the Charter applied to that exercise.
5. Procedure and participation. The parties were invited to prepare a draft reference containing the factual background and proposed questions. The interveners were permitted to participate in drafting it.

The operative order was that the appeal was adjourned for an ECJ referral.

• High Court, Queen’s Bench Division: Cranston J decided the judicial-review challenge and held, among other things, that the Charter could not be directly relied on against the United Kingdom.
• Court of Appeal (Civil Division): The appeal was adjourned for a reference to the Court of Justice of the European Union, and the balance of the proceedings was stayed.