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

Where the interpretation of a Withdrawal Agreement provision is genuinely uncertain and material to judicial review claims, the court may request a preliminary ruling from the Court of Justice of the European Union. The necessity condition is met where the answer could determine entitlement to social assistance and materially affect the assessment of an alleged difference in treatment. A reference may be appropriate where neither competing interpretation is markedly more plausible, an appeal is likely, and an authoritative answer would serve a wider public interest. The application of Article 17(2) to a dependent family member who was outside the host State at the end of the transition period but later entered as a dependant and ceased to be dependent following domestic abuse was not clear.

The claimant, a Bangladeshi national, entered the United Kingdom as a dependent adult relative of her son, who held settled status. She later left his household following domestic abuse.

She brought conjoined judicial review claims challenging the refusal of universal credit by the Secretary of State for Work and Pensions and the exclusion of non-partner family members from the Migrant Victims of Domestic Abuse Concession and Appendix VDA operated by the Secretary of State for the Home Department.

A central issue was whether Article 17(2) of the Withdrawal Agreement preserved her residence rights after she ceased to be dependent, and whether Article 23 consequently entitled her to equal treatment in access to benefits. The court also had to decide whether that question should be referred to the CJEU.

1. The proceedings were stayed and a preliminary ruling was requested. The court ordered a reference to the CJEU under Article 158(1) of the Withdrawal Agreement and invited the parties to agree the appropriate order.
2. Article 17(2) was not clear in the circumstances. Articles 9 and 10, read without Article 17(2), suggested that a joining family member whose status depended on dependency had to satisfy that condition at the time of application and continuously thereafter until acquiring permanent residence. Article 13(3), read with Articles 7(2), 12, 13(2) and 14 of the Directive, pointed in the same direction.
3. The reasoning of Lane J in R (Ali) v Secretary of State for the Home Department that “before the end of the transition period” meant “at the end of the transition period” was accepted as sound for persons who had ceased to be dependants before that date. It did not resolve the present case, involving a person who was outside the host State at that date and later entered as a dependant.
4. Two competing interpretations of Article 17(2) were arguable. The provision might protect only family members already residing in the United Kingdom as dependants at the end of the transition period. Alternatively, it might protect persons who then satisfied the Directive definition of family member but resided abroad and later entered under Article 10(1)(e)(ii). The provision had no analogue in EU law and might have been intended to give additional protection after EU law ceased to apply.
5. The Article 158(1) necessity condition was satisfied. If the claimant’s interpretation were correct, Article 23 would require equal treatment and could entitle her to universal credit. If the Secretary of State’s interpretation were correct, the absence of a Withdrawal Agreement residence right would materially support the justification for the challenged difference in treatment. The answer was also material to the Home Secretary’s cost justification.
6. A reference was appropriate because neither interpretation was markedly more plausible, an appeal was likely, delay could result from a later reference, and there was a strong public interest in an authoritative answer.