England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2008] EWCA Civ 983

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		Neutral Citation Number: [2008] EWCA Civ 983
		Case No: B5/2007/2769

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LAMBETH COUNTY COURT
(HIS HONOUR JUDGE WELCHAM)

Royal Courts of Justice
Strand, London, WC2A 2LL

24th July 2008

B e f o r e :

LORD JUSTICE STANLEY BURNTON
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	TEIXERIA	Appellant
	- and -
	LONDON BOROUGH OF LAMBETH	Respondent

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Mr R Gordan QC and Mr A Berry (instructed by Messrs Ole Hansen) appeared on behalf of the Appellant.
Ms Deok Joo Rhee (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
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HTML VERSION OF JUDGMENT
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Lord Justice Stanley Burnton:

This is an appeal by a Portuguese lady, Maria Teixeria, whose application for homelessness assistance was rejected by the London Borough of Lambeth on the ground that she was excluded from the ambit of the legislation by reason of the fact that she was subject to immigration control. The only issue now remaining is whether Article 12 of the relevant regulation, 1612/68, conferred on her, in effect, a right to remain in this country free of immigration control by reason of the fact that she is, as was found by the reviewing officer, the primary carer of a child who is a national and who is in full-time education in this country; so that the child, on the face it, fulfils the requirements of Article 12. It is said, and it seems to me at the moment that it is arguable, that if the child has a right under Article 12, the primary carer of that child may be entitled to remain in this country free of immigration control in order to render that right practical rather than illusory.

On the other hand, there are undoubtedly arguments that, as a result of the repeal of other provisions of that regulation and a subsequent regulation, she does not qualify because is she wholly dependent on public resources; she has no resources of her own, and it is, on one view, now a requirement of persons in her position that she be self-sufficient, which she clearly is not.

The question of the effect of Article 12 has already been referred to the European Court of Justice, and it is, I think, accepted that the question whether Article 12 applies in circumstances found by the reviewing officer is not acte claire. The relevant issues appear to me today to be whether it is applicable in circumstances (1) where she is in fact an EEA national, and (2) where she is dependent on public resources for her support. Whether there are other specific issues that arise in relation to Article 12 will remain to be considered hereafter.

However, since those matters are not acte claire, and since on one view she is entitled to remain by virtue of the effect of Article 12, it seems to me that what I ought to do, as I have indicated, is to grant permission to appeal. But, given that this is a case where, subject to any application that may be made by the Secretary of State, the facts are clear, and issues of European law are relatively clear, and that her situation is a not uncommon situation, I consider that a reference should be made as soon as possible, so that authorities in the position of Lambeth know what their liabilities are and, indeed, so that persons who are within this country seeking homelessness assistance know what their position is. The implications of the case, indeed, go beyond homelessness; they reach into the right to remain in this country at all.

So in those circumstances, what I propose to do is to, as I have said, grant permission to appeal, but to direct that this case will come before the court by mid-August, and the date is 15 August, a Friday. It will come before a court which includes myself in the constitution. It may be that the parties will be able to agree what is to be done at that date. At the moment, if the questions of the effect of Article 12 are alive, unless there is some other reason established at that date why no reference should be made, I anticipate that the court may well wish to make a reference at that stage, in order to determine the appeal. Of course, I cannot bind the other members of the court, and indeed I do not bind myself; but at the moment, it appears to me to be a sensible way of dealing with this matter, and I would also consider this court making a request to the European Court of Justice for this matter to be heard at an early date, because it involves the liabilities of local authorities, whose resources are limited, and because it involves the position of, in this case, homelessness, people who would otherwise be homeless, and in other cases there may be other social security rights in issue which have not been considered in this case.

So that is what I propose to do. At the moment, I am not sure it need come before a court of three, but if there are three judges available it should. I would have thought a court of two would be sufficient. I make an order joining the Secretary of State as second respondent to these proceedings. I am going to ask counsel to agree an order, and I think I should ask counsel to submit a note or skeleton two clear days before the date notified for the hearing, so the court is aware of just where there are issues, whether an order has been agreed and so on. Any application the Secretary of State may wish to make as to further evidence, which I do not encourage, but there we are, can be made in the proper form. What I shall say is: an estimated duration of 30 minutes, but the parties are to inform the Appeal Court office seven days before the date for the hearing if it is thought that there will be a disputed hearing which requires a longer hearing time.

Order: Appeal granted.