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Court of Appeal refers question on the Citizenship Directive to ECJ

DATE: 10 Mar 2009

In this case the Court of Appeal referred a question on the interpretation of the Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States to the European Court of Justice for a preliminary ruling. The question arose in a case concerning the availability of income support of EU nationals: Secretary of State for Work and Pensions v Lassal [2009] EWCA Civ 157.

The reference concerns the right of permanent residence set out in Article 16 of the Directive. The Secretary of State argued that the right did not apply to situations where a person had been resident for a continuous period of five years which ended prior to the implementation date of the Directive. The Court of Appeal (Waller, Arden and Moore-Bick LJJ) disagreed with that interpretation but decided to refer the question to the ECJ as the Directive was not acte clair. The reference potentially has wide reaching implications in social security and immigration law for the EU citizens and their family members. 

Richard Drabble QC and Richard Turney appeared for the Intervener, the Child Poverty Action Group.