CA-2024-001773 - [2025] EWCA Civ 1057

Reference to CJEU

The Appellant, with support from T3M in particular, urges a reference to the CJEU to resolve the question raised by Ground 1. Under Article 158(1) of the Withdrawal Agreement, this Court may ask the CJEU to give a preliminary ruling on a question concerning Part Two of the Withdrawal Agreement. We remain well within the 8 year period (from the end of the transition period) for such a reference to be made. It is said that the issue at the heart of this appeal (the subject of ground 1) is not acte claire, a phrase that has been defined to mean that the application of EU law is “so obvious as to leave no scope for reasonable doubt” (Case 283/81 CILFIT Srl v Ministero Della Sanita [1983] 1 CMLR 472 at para 16). T3M suggests, in addition, that there is great uncertainty about any individual’s rights if the Secretary of State is correct. The point about uncertainty was answered, in my view correctly, in IMA where Lane J held that “the pursuit of certainty under a constitutive residence scheme cannot affect the nature of the rights of residence conferred”; that a person with Article 13 residence rights falling short of permanent residence was entitled to reside in the UK, as a matter of EU law, only for as long as the relevant limitations and conditions in the CRD were satisfied; and that was “an inherent feature of the rights conferred by Article 13(1) to (3)” (paragraph 156).

The Secretary of State, the IMA and the Respondent resist a reference. They submit that there is a clear answer to the issues of construction of the Withdrawal Agreement and that the opinion of the CJEU is not required.

Jay J was of the view that the issue at the heart of this appeal was not acte claire but still he declined to make a reference. We have had the benefit of more refined arguments from the parties and a number of interveners. We have also had the significant benefit of Jay J’s judgment. The points are now well rehearsed.

I agree with the Secretary of State and the IMA. I am not left in any real doubt about the answer to this appeal. I am sure that the equal treatment protection in Article 23(1) does not extend to this Appellant. I accept that the Secretary of State’s analysis, which I have endorsed, results in a mixed cohort of PSS holders: some with EU law rights of residence, and others without. But that is how the new residence status designed by the UK and permitted by Article 18(1) is meant to work. In the end, it is simply not possible to accept that the signatories to the Withdrawal Agreement intended those with purely domestic law rights (by means of PSS, like the Appellant) to benefit from equal treatment protection under the Withdrawal Agreement; that would mark a significant shift away from the status quo ante and would need to be clearly signalled. That leads me to conclude that the answer is acte claire and for that reasonI would not refer a question to the CJEU.