This is the judgment of the court. The issue in this case relates to the disputed right to remain in the United Kingdom of a Somali mother and her young Danish children. She is married to but separated from her Danish husband, who has worked in the UK but, having ceased for a while to do so, first departed from the UK and then returned but since his return has continued not to work. None of the family is self-sufficient. The issue arises in a housing context. The mother seeks housing from the London Borough of Harrow. She is eligible for housing assistance only if her children of school age have a right to reside in the UK. If they do, so does she. If they do not, neither does she. That is because the housing legislation is premised on the applicant for housing assistance not being subject to immigration control, and that depends in this case on the mother’s right to reside here under EU law.

The mother, Ms Ibrahim, in this court the respondent, says that she is entitled to remain here by reason of article 12 of Regulation (EEC) No 1612/68 (the “1968 Regulation”) taken together with the decision of the European Court of Justice (the “ECJ”) in Baumbast and R v Secretary of State for the Home Department (Case C-413/99) [2002] ECR I-7091 (“Baumbast”). The London Borough of Harrow (the “Borough”), in this court the appellant, says that she must bring herself within the subsequent modern EU codification of the right of residence, namely Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 (the “2004 Directive”) and the corresponding provisions of English law to be found in the UK’s Immigration (European Economic Area) Regulations 2006 (the “2006 Regulations”), and that she cannot do so.

This issue has so far been decided: (i) By Ms Jamil, the Borough’s housing assessment officer, who found Ms Ibrahim ineligible for housing assistance since neither she nor her husband were exercising a community law right to reside in the UK. By her decision dated 1 February 2007 (wrongly dated 2006), she distinguished Baumbast on the ground that Mr Baumbast was financially self-sufficient. (ii) By Ms Hunnisett, the Borough’s housing review officer, upon a statutory review of the original decision, who confirmed the decision on the same grounds by her decision letter dated 29 March 2007. (iii) On appeal to the Clerkenwell and Shoreditch County Court, by Recorder Hochhauser QC, who allowed Ms Ibrahim’s appeal on the ground that the 2004 Directive was not a complete code, that Baumbast stood apart as granting to Ms Ibrahim’s two older children who were at school a right to reside under article 12 of the 1968 Regulation in order to complete their education and thus to Ms Ibrahim a derivative right to reside as their primary carer, and that their right to reside in the UK was independent of any question of self-sufficiency. Recorder Hochhauser’s judgment is dated 18 October 2007.

Permission to appeal from the decision of Recorder Hochhauser to the Court of Appeal was granted on the basis that Ms Ibrahim’s appeal raised important issues of principle.

The Secretary of State for the Home Department was permitted to intervene as an Interested Party before Recorder Hochhauser, and as such is entitled to be heard on this appeal as a respondent party to it.

The facts are not in dispute and were found by Recorder Hochhauser as follows.

Ms Ibrahim is a Somali national. She is married to but separated from a Danish citizen, Mohamed Bashir Yusuf (“Mr Yusuf”). Mr Yusuf came to the UK in the autumn of 2002 and shortly thereafter worked for First Buses at Westbourne Park in West London from 17 October 2002 until 29 May 2003. From 2 June 2003 to 23 March 2004 Mr Yusuf claimed incapacity benefit, but this ceased when he was declared fit to work at the end of that period. Instead of returning to work, however, he left the UK shortly thereafter and subsequently lived in Eastern Europe, before returning to the UK in December 2006. The Borough made the finding, which is not challenged, that in between ceasing work and leaving the UK Mr Yusuf ceased to be “a qualified person” for the purposes of the 2006 Regulations, ie a person with a right to reside in the UK. “A qualified person” means a person who is an EEA national and is in the UK as either a jobseeker, a worker, a self-employed person, a self-sufficient person, or a student (see regulation 6). On his return to the UK in December 2006, Mr Yusuf did not regain the status of “a qualified person” with a right to reside. On his return Mr Yusuf and Ms Ibrahim lived together for a short time, but separated again soon thereafter and she and their children no longer reside together with him.

Ms Ibrahim came to the UK with the permission of the immigration authorities in February 2003 in order to join her husband. They have four children, all of whom are Danish citizens. In October 2007 their ages ranged from 9 to 1. The three older children came to the UK with their mother in February 2003. The fourth child was born in the UK. The two eldest, Abdirahman and Abdifatah, started in state education shortly after their arrival in the UK, and remain in such education.

Following her husband’s departure from the UK in 2004, Ms Ibrahim separated from him. She was not and is not self-sufficient. She does not work and relies entirely on means-tested benefits to pay her basic living expenses and housing costs. She has no comprehensive medical insurance and is reliant upon the National Health Service (NHS).

In January 2007 Ms Ibrahim applied to the Borough for homelessness assistance for herself and her children. She did not and does not wish her husband to be included in her application. She and her husband remain separated. As of the date of the review of her application (which concluded with Ms Hunnisett’s decision of 29 March 2007), Mr Yusuf had not engaged in any kind of employment and was and is reliant upon state benefits.

The EU Treaty

Article 18.1 of the EU Treaty provides:

The 1968 Regulation

This Regulation, which is directly applicable, regulates the freedom of movement of workers within the Community. The relevant articles are 1, 10, 11 and 12. Articles 10 and 11 were repealed by the 2004 Directive, but article 12 still survives. It is relevant to observe that there is no express requirement of self-sufficiency in the provisions relating to workers.

Any national of a Member State, shall, irrespective of his place of residence, have the right to take up an activity as an employed person, and to pursue such activity, within the territory of another Member State in accordance with the provisions laid down by law, regulation or administrative action governing the employment of nationals governing the employment of nationals of that State.

He shall, in particular, have the right to take up available employment in the territory of another Member State with the same priority as the nationals of that State.

The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State:

his spouse and their descendants who are under the age of 21 years or are dependants;

dependent relatives in the ascending line of the worker and his spouse.

In GBC Echternach and A Moritz v. Netherlands Minister for Education and Science Joined Cases 389 and 390/87, [1989] ECR 723, Mr Moritz was a student of German nationality who had gone to live with his parents in the Netherlands in 1972, when he was 5. His father remained employed in the Netherlands until posted to Germany in 1985. He returned with his parents to Germany, but found himself unable to continue his education there since his Netherlands certificate of education was not recognised. He therefore returned to the Netherlands and re-enrolled there. He was over 21. He was granted a residence permit, but refused study finance on the basis that he was not to be treated in the same way as a Netherlands student. The question arose whether Mr Moritz had a community law right of residence under the 1968 Regulation which made it unlawful to treat his status in the Netherlands as different from that of a Netherlands student. The ECJ held that he did. It approved the Commission’s arguments, which included the following at para 70 of the Report for the Hearing (at page 737):

The ECJ upheld those arguments at para 20 of its judgment, commenting that equal treatment as regards benefits granted to members of workers’ families “contributes to their integration in the society of the host country, in accordance with the aims of the freedom of movement for workers”. The Court concluded (at para 23, page 762):

Among other measures regulating residence prior to the adoption of the 2004 Directive was Directive 90/363/EEC (the “1990 Directive”). The recitals included the following:

This provision has been referred to as the “self-sufficiency” provision relating to rights of residence. The Borough and the Secretary of State submit that considerations of self-sufficiency are inherent in this area of Community law. Ms Ibrahim submits that self-sufficiency is not a condition of a worker’s (and his or her family’s) right to residence in a host member state and that the purpose of the 1990 Directive was to broaden rights of residence beyond those which had already been granted, but subject to a condition of self-sufficiency.

In Baumbast and R v. Secretary of State for the Home Department Case C-413/99, [2002] ECR I-7091, the Baumbast daughters were in primary education in the UK. Their father, Mr Baumbast, was a German national who had come to the UK to work as a self-employed person. Their mother, Mrs Baumbast was a Colombian national. They married in the UK in 1990. One daughter was Colombian and the other had dual German and Colombian nationality. In 1993 Mr Baumbast left the UK (on the failure of his company) and had been employed in China and Lesotho since then. He had never worked again in the UK although he had from time to time sought work there. The couple owned a house in the UK on a mortgage, and the family had no recourse to public funds, had comprehensive medical insurance in Germany and travelled there for medical treatment if necessary. In 1995 and 1996, Mr and Mrs Baumbast applied for indefinite leave to remain in the UK. (See the Court’s judgment at paras 16/20, at pages I-7145/6.)

The Court was asked three questions. The first related to the children: and enquired whether children of a migrant worker in a host member state were entitled to remain there to further their education pursuant to article 12 of the 1968 Regulation, despite the fact that the worker parent had ceased to work in the host country (and despite other matters affecting the family, such as divorce, or the absence of any community citizenship within the family other than that of the ex-worker: the question of divorce arose in the conjoined case of R, where the migrant worker continued to work in the UK but was divorced from the child’s mother). The second related to their primary carer: and enquired on a similar basis, and on the assumption that the children did have such a right to reside, whether their primary carer (such as a mother) had a right to reside with the children. The third related to Mr Baumbast himself: and enquired whether he had a directly effective right to reside under article 18 of the EC Treaty in a host country where he had ceased to be a migrant worker; and if so whether his wife and children enjoyed derivative rights of residence.

The Court answered “Yes” to all three questions. In the light of these answers, the Court felt it unnecessary to answer the second part of the third question (relating to derivative rights).

In his opinion, Advocate General Geelhoed considered that Community legislation had not kept pace with changing circumstances, and contained lacunae which the Court had to address: see paras 34, 87/88 and 94. He recommended building on the decision in Echternach and Moritz, which dealt with the situation where the migrant worker had left the host country where he had been working.

In relation to the first question, the Court agreed with the Advocate General in finding assistance in the decision in Echternach and Moritz (see paras 51 and 53), and reasoned as follows:

The parties in this appeal have debated whether the essence of this reasoning is to find in the 1968 Regulation’s article 10 or (by implication) solely in article 12 the right to reside in order to vindicate the child’s right to access to education which is the express subject matter of article 12.

On the basis of its answer to the first question, the Court implied a derivative right of residence for the children’s primary carer. The Court reasoned the matter as follows:

Finally, as for the third question, the Court found in article 18(1) of the EC Treaty, coupled with Mr Baumbast’s family’s essential self-sufficiency, the basis of his right to reside in the UK, despite having ceased to be a worker there. It was true that the 1990 Directive’s article 1(1) required a Community citizen who sought to exercise his right of residence thereunder in a host member state to hold cover for himself and his family for sickness insurance in the host country, and that in this respect Mr Baumbast lacked the necessary cover in the UK. However, his family was covered by comprehensive sickness insurance in Germany, so that in practice all that his family lacked in the UK was emergency sickness cover. The essential principles at work were that beneficiaries of such a right of residence should not become an “unreasonable” burden on the public finances of the host country (see the preamble to the 1990 Directive), and thus a principle of proportionality had to be applied. The Court therefore concluded:

The parties to this appeal dispute the relevance of the principles of self-sufficiency and proportionality to the right of Ms Ibrahim’s elder children in school and of Ms Ibrahim herself as their primary carer to reside in the UK. On behalf of Ms Ibrahim it is submitted that the first two questions in Baumbast were answered without any reference to those principles. On behalf of the Borough and the Secretary of State it is submitted that the facts of self-sufficiency were part of the essential facts of that case and cannot be ignored.

As the travaux préparatoires of the 2004 Directive demonstrate, this Directive was under consideration both before and after the Baumbast decision. In the event, the 2004 Directive took account of both Echternach and Moritz and Baumbast. However, it is also clear that the 2004 Directive, which repealed much of previous legislation concerning rights of residence, including articles 10 and 11 but not article 12 of the 1996 Regulation, was intended to cover this field with a new codification, contained in a single legislative act. We cite relevant extracts from its preamble:

The relevant provisions of the articles of the 2004 Directive are as follows:

the limits placed on the rights set out in (a)…on grounds of

are workers or self-employed persons in the host Member State; or

have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or

- are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislative or administrative practice, for the principal purpose of following a course of study, including vocational training; and

are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).

For the purposes of paragraph 1(a), a Union citizen who is no

he/she is temporally unable to work as a result of an illness or accident;

he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office;

he/she is in duly recorded involuntary unemployment after completing a fixed-term contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months;

he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of status of worker shall require the training to be related to the previous employment…

Article 12.3 of the 2004 Directive, in the context of that Directive as a whole, is a critical provision in the current appeal. It appears to reflect the considerations of the Echternach and Moritz and Baumbast decisions, but Ms Ibrahim acknowledges that she cannot rely on it because it contains what she describes and accepts as a lacuna: it does not protect the family of the ex-migrant worker, such as Mr Yusuf, who has ceased to be such a worker before departure from the host member state. Instead she therefore relies on the surviving article 12 of the 1968 Regulation itself, as broadly interpreted in Baumbast. The Borough and the Secretary of State, however, submit that the 2004 Directive is intended to be a complete code, and that the fact that the case of Ms Ibrahim and her children does not fall within it is decisive. They also submit, based on the overall provisions of the Directive, that, outside the case of the migrant worker and his/her family itself, the requirement of self-sufficiency is pervasive and applies to this case.

The 2006 Regulations are made under section 2(2) of the European Communities Act 1972 and section 109 of the Nationality, Immigration and Asylum Act 2002, and give effect to the 2004 Directive. The regulations are written in terms of a “qualified person”, defined in regulation 6 as a person who is an EEA national and in the UK in one of a number of capacities, such as job-seeker, worker, self-employed person, self-sufficient person, and student. A person may be removed from the UK if he is not, or has ceased to be, a qualified person (regulation 19(3)(a)).

It is unnecessary to set out the provisions of the 2006 Regulations at any length, for it is common ground that (i) the 2004 Directive is correctly implemented into UK law by means of the 2006 Regulations; and (ii) the 2006 Regulations, like the 2004 Directive itself, are not in any event the source of Ms Ibrahim’s rights.

It is sufficient therefore to observe that the effect of article 12 of the 2004 Directive is to be found in regulation 10 of the 2006 Regulations, and that for present purposes the critical provisions are in regulation 10(3) and (4) as follows:

It is unnecessary to set out the detailed provisions of the UK’s Housing Act 1996 and the relevant regulations made under it, the Allocation of Housing and Homelessness (Eligibility) Regulations 2006, for the parties are in agreement about their effect.

In brief, Ms Ibrahim is not eligible for housing assistance if she is a person from abroad who is subject to immigration control within the meaning of the Asylum and Immigration Act 1996, unless she is of a class prescribed by the Secretary of State. She is not of a class prescribed in regulations prescribed by the Secretary of State. The issue is therefore whether she is “subject to immigration control”. This depends on whether she has a right of residence in the UK which is an enforceable community right, such as a right derived from an EU Regulation (such as the directly enforceable 1996 Regulation) or a right derived from any provision made under section 2(2) of the European Communities Act 1972 (such as the 2006 Regulations giving effect to the 2004 Directive).

On behalf of the Secretary of State, Mr Clive Lewis QC has made the following submissions, which Mr Kelvin Rutledge has supported on behalf of the Borough.

Since its promulgation the 2004 Directive is the sole source of conditions governing rights of residence in member states for citizens of the EU and for members of their families (and those rights have been effectively and accurately transposed into English law by reason of the 2006 Regulations).

That is clear from the preamble to the 2004 Directive, and is supported by consideration of its travaux préparatoires which demonstrate that it was the intention of the drafters of the 2004 Directive to incorporate the Baumbast decision of the ECJ within the conditions laid down in the 2004 Directive. That in turn reflects the opinion of Advocate-General Geelhoed delivered in Baumbast that Community legislation in the area of workers’ and others’ rights of residence was in need of a comprehensive overhaul.

It is common ground that Ms Ibrahim and her children do not have rights of residence within the UK under the conditions laid down in the 2004 Directive, see in particular article 12(3) (or under those same conditions accurately and effectively transposed into UK law by reason of the domestic 2006 Regulations). This is because the husband and father, Mr Yusuf, had ceased to be a worker in the UK before he departed from the UK in 2004.

Recorder Hochhauser had been wrong to accede to the submission made on behalf of Ms Ibrahim that the 2004 Directive had nevertheless left untouched article 12 of the 1968 Directive and the Baumbast decision based upon it, and that therefore an ex-worker’s children in education, together with their primary carer, still retained their previous status with its right of residence in the host member state. Article 12 of the 1968 Regulation was the source of a worker’s child’s right of access to education in the host member state, but upon the repeal of the 1968 Regulation’s article 10, which was the source of rights of residence under the Regulation, its article 12 right of access to education was now subject to the altered conditions laid down in the 2004 Directive. Those laid down that a Union citizen’s family only retained a right of residence for the purpose of access to education upon the ceasing of the worker’s right of residence if the worker’s right of residence had ceased on death or departure.

In any event, any retained right of residence for the family, after the Union citizen’s departure from the host member state, must itself depend on their self-sufficiency. The principles of self-sufficiency and proportionality were essential principles of Community law, to balance the needs of the citizen and the state. The condition of self-sufficiency was not required of the migrant worker and his family, but it was a condition of any other form of right of residence, as inter alia article 7 of the 2004 Directive made clear. In Baumbast the family was self-sufficient, and although that was not expressly relied upon in the reasoning of the ECJ in its answers to questions one and two, as distinct from question three, nevertheless those were the facts of the case and it would be wrong in principle to derive any wider principle from it such as would validate Ms Ibrahim’s claim given her lack of self-sufficiency.

In sum, it was impossible to find in the terms of the 2004 Directive, and it would be wrong in principle to derive from article 12 of the (now amended) 1968 Regulation or from Baumbast (dealing with the unamended 1968 Regulation) a general rule under which a migrant worker’s children of school age, once enrolled upon their education however briefly, could, together with their primary carer, retain a right to residence for the whole period of their education in the host member state of an ex-worker, however brief his sojourn there as worker and despite the absence of self-sufficiency.

On behalf of Ms Ibrahim, Ms Nicola Rogers submitted as follows.

While it was accepted that article 12(3) did not assist Ms Ibrahim in the present case, that was merely because of a lacuna found there on the particular facts relating to Mr Yusuf, who had ceased to be a worker with a right of residence in the UK before his departure (and had failed to obtain a new right of residence on his return). The presence of that lacuna in the 2004 Directive threw no light at all on the broad principle derived from article 12 of the 1968 Regulation by the ECJ in Echternach and Moritz and Baumbast. The broadness of the rights derived from article 12 by the Court in Baumbast is to be emphasised.

The effect of those two decisions was to derive an implied right of residence from article 12 of the 1968 Regulation itself. In the circumstances, it was irrelevant that articles 10 and 11 of the 1968 Regulation had been repealed by the 2004 Directive. It was more to the point that article 12 had specifically not been repealed.

The fact that the travaux préparatoires of the 2004 Directive demonstrated that it had been intended to encompass Echternach and Moritz and Baumbast in the 2004 Directive only served to emphasise, with the survival of article 12 of the 1968 Regulation itself, that it was necessary to continue to give effect to that article and the decisions founded on it. On the contrary, if it had been intended so to subsume those decisions in the 2004 Directive itself, then it would have been necessary to make that expressly clear, possibly by amending article 12 of the 1968 Regulation itself.

This was particularly the case where the rights of Ms Ibrahim’s children to education in the UK had already accrued, despite Mr Yusuf’s ceasing to work in the UK by the spring of 2004, even before the promulgation of the 2004 Directive on 29 April 2004.

As for the principle of self-sufficiency, there is no requirement of self-sufficiency in the case of a Union citizen who works in a host member state: there had been no such requirement in the past, and there was none in the 2004 Directive (see its article 7(1)(a), as distinct from (b) and (c)). Moreover, there was no requirement of self-sufficiency in the ECJ’s answers to questions one and two in Baumbast. This was emphasised by the fact that the Court did not think it necessary to answer the subsequent parts of question three (see Baumbast at para 95). It was also the opinion expressed by the Second Commission Report to the Council and Parliament on the implementation of Directives 90/364, 90/365 and 93/96 (right of residence) dated 5 March 2003 itself: see at page 9, under the heading Protection of family life.

Recorder Hochhauser was therefore right to find in favour of Ms Ibrahim’s claim for the reasons which he gave.

In sum, once a Union citizen had come as a migrant worker to a host member state together with his family, that state was required, irrespective of the failure of that citizen’s status as a worker or of the absence of self-sufficiency, to recognise the retained right of residence of children undergoing education there, and that of their primary carer, for as long as the children’s education continued. Whatever the lacuna in the present case so far as article 12(3) of the 2004 Directive is concerned, that provision essentially recognises the same principle in granting retained rights of residency in the case of the departure of a worker, as well as his death.

In our judgment the issues raised by this appeal are not acte clair and need to be referred to the ECJ. These are important issues on recent Community legislation and also raise a difference of opinion concerning a recent decision of the Court which the 2004 Directive has itself sought to include within its provisions.

In the circumstances, we feel diffident about expressing any view ourselves as to the correct answer to be given in this appeal. We would merely, and briefly, observe as follows.

The factual situation in the present appeal is very different from the four cases encompassed by Echternach and Moritz and Baumbast and R. In the first decision, the student children were themselves adults, indeed above 21. They had spent most of their lifetime in the host countries. In the second decision, the Baumbast family were continuing to reside in their home in the UK, and were stated to be self-sufficient. In R, the migrant worker was still working in the UK and thus plainly maintained his right of residence, and the only issue was that he had divorced.

There has been debate before us as to whether the rationale of Baumbast is that there is an implied right of residence within article 12 alone of the 1969 Regulation. We would be inclined rather to read Baumbast as saying that the implication comes out of a combination of articles 10 and 12 of the 1968 Regulation: article 10 gives the right to children under 21 “to install themselves” in the host member state and article 12 gives the right of access to education there (see Baumbast at paras 56/57). However, article 10 of the 1968 Regulation has now been repealed, and replaced by article 7 of the 2004 Directive. It is not obvious to us that the full rationale of Baumbast survives, and it is arguable that its modern rationale has to take its source from a combination of article 12 of the 1968 Regulation taken together with the 2004 Directive. This seems to us to be supported by the references in the 2004 Directive’s preamble to that Directive as a codification, following review, of this area of Community law, and to the need for a single legislative act.

Article 12 of the 2004 Directive is the modern express source of the retention of the right of residence by family members in the event of death or departure of the Union citizen. The case of death is more straightforward: it is dealt with expressly in preamble (15), and in article 12(2) as well as 12(3). It is understandable that special provision needs to be made for the misfortune of death, which leaves the surviving family, absent any choice, without the family member on whose status as a worker their right of residence depends. The case of departure is more problematical, and has not been foreshadowed in the preamble or the travaux préparatoires. It is suggested on behalf of Ms Ibrahim that Echternach and Baumbast were cases of departure, but we are not sure of that. Echternach was, but in Baumbast the father was still residing in his family home in the UK, even if he also earned his living abroad. In any event, the notion of departure appears to be in essence new to the 2004 Directive. Article 12 of the 1968 Regulation simply speaks of children of a worker who “is or has been employed” in a host member state (see Baumbast at para 54 where that language is emphasised). Moreover, the first question in Baumbast speaks not of a worker who has departed the host member state, but of one “who has ceased to be a migrant worker” there (at para 39). We are therefore uncertain what is the significance of the concept of departure. Why does it matter whether the migrant worker has left to work in another country, or has stayed in the original host country but ceasing to work?

As for the principle of self-sufficiency, we are inclined to agree with Ms Ibrahim (and Recorder Hochhauser) that questions one and two in Baumbast were answered without reference to that principle. But it still remains true that the answers given were against the background of the fact that the Baumbast family were self-sufficient. We observe that article 12(3) of the 2004 Directive does not appear to be expressly premised on the condition of self-sufficiency, even though that principle is expressly mentioned in article 12(2) dealing with death. However, there is a general principle of self-sufficiency outside the case of the worker (see for instance preamble (10)).

In sum, we are sceptical as to whether article 12 of the amended 1968 Regulation and Baumbast in the light of the 2004 Directive do give to the children and primary carer of a worker who has stopped working a right to reside in the host member state to complete an education which has relatively recently begun and to do so despite lack of self-sufficiency, and however briefly the worker has resided as a worker in the host member state.

We therefore refer the following questions to reflect the matters debated before us: