Case Nos: C5/2008/3042
C5/2008/2524
Neutral Citation Number: [2009] EWCA Civ 560
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT Nos: IA009532007; IA166562007]

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 30th March 2009

Before:

LORD JUSTICE SEDLEY
LORD JUSTICE STANLEY BURTON
and
LORD JUSTICE ELIAS
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	RN (Algeria) 
& 
OP (Colombia)	

Appellants 	
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SECRETARY OF STATE FOR THE HOME DEPARTMENT  	

Respondent	

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Mr D Bazini appeared on behalf of the Appellant RN (Algeria).
Mr B Bedford appeared on behalf of the Appellant OP (Colombia).
Ms S Broadfoot (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.

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Judgment

Lord Justice Sedley:  

1.	These two cases, it is agreed, need to stand over pending the determination by the European Court of Justice of a question that has been referred to them in the case of Secretary of State for Work and Pensions v Lassal [2009] EWCA Civ 157.  That question, in short, is as to when time starts running for the purpose of computation of a right of residence under European legislation which has been or should have been transposed into the law of this country.  Both cases before us raise this question and therefore it makes sense, as all parties agree, that we should await the Court of Justice’s ruling.  

2.	However on behalf of the appellant, OP, Mr Beckett Bedford submits that this court should make a further reference in one of two possible forms, in order that the applicability of the eventual answer of the court to third-country nationals who are family members of an EU national may also be determined.  His client is in such a situation.  The form of reference that has been proposed by Mr Bedford is in the alternative, either the formulation by us of a separate question to the effect that I have indicated, or the re-referral, if such a thing is procedurally possible, of the Lassal question so that his client may become a party to the proceedings in Luxembourg.  

3.	The reason why I would not accede to either version of the application is, in short, that (at the moment, anyway) there is no issue about this.  While any case is going to have to depend on its facts, and the Secretary of State is entitled to reserve the factual position in any future case, it is not (so far, anyway) suggested that the rights of somebody who enjoys a right of residence as a third country national who is a family member of an EU national are any different from those of the EU national themselves when it comes to the Lassal question, the computation of time and the point at which time starts running.

4.	Article 234 of the Treaty gives the Court of Justice jurisdiction to give preliminary rulings “where such a question is raised”, as the Article specifies.  The raising of a question requires more than counsel rising to his feet, as Mr Bedford has done with his customary persuasiveness, and formulating a possible question that somebody may raise at some unspecified time in some unspecified case in the future.  A question arises when an issue is joined about it, and no issue has been joined in the present case about the position of third-country nationals.

5.	Mr Bedford in addition relies upon the European Court’s practice direction, paragraph 13, which suggests that a reference for a preliminary ruling: 

 “… may prove particularly useful, at an appropriate stage of the proceedings, when there is a new question of interpretation of general interest for the uniform application of Community law throughout the Union …”

Again it seems to me that this does not apply to hypothetical questions.  It applies to questions that have concretely arisen in litigation, and so far there is no such question here. 

6.	I would accordingly accede to the application in which all parties concur to stand these two cases over to abide the decision of the Court of Justice in Lassal, with liberty to apply in case anything unexpected happens in that quarter.  But I would refuse the other application, the application made by Mr Bedford, in both its versions to enable him to take his case now to Luxembourg.

Lord Justice Stanley Burnton:  

7.	I entirely agree.

Lord Justice Elias:  

8.	So do I, and I would only add that it seems to me that the point raised by Mr Bedford may be before the Court already in the case of McCarthy v SSHD [2008] EWCA Civ 641, which seems to raise questions about exactly what legal residence under the terms of the Directive means.  We have not seen the reference in that case, which is rather unfortunate, but in any event for all the reasons given by my Lord, Sedley LJ, I agree that this is not an appropriate case to send off at this stage.

Order:  
1.	The applications for a stay in the matter of RN(Algeria) and OP(Colombia) are granted pending the outcome of the case Secretary of State for Work and Pensions –v- Lassal C3/2008/1924  with liberty to apply.
2.	In the matter of OP (Colombia) the application for reference is refused. 
3.	The Secretary of State for the Home Department, the Respondent in both cases, is to recover the costs of today’s application from the Legal Services Commission in the matter of OP (Colombia).
4.	There be costs in the appeal in the matter of RN (Algeria).  In the matter of RN (Algeria) and OP (Colombia) in relation to costs, there be a detailed assessment of the Appellants’ publicly-funded costs pursuant to paragraph 15 of the Community Legal Service (Costs) Regulations 2000.