Oguz v Secretary of State for the Home Department

When this appeal came before the court on 16 March, Mr John Walsh, representing the appellant, realistically and properly conceded that in the present state of binding authority he could not succeed at this level.

The immediate reason for this concession was the majority decision of this court in Sonmez [2009] EWCA Civ 582. But behind Sonmez lies jurisprudence, including importantly the decision of the European Court of Justice in Kondova v United Kingdom [2001] ECR I - 6427, which appeared to have become sufficiently problematical to warrant the grant of permission to appeal to this court.

On the basis of what we now know was incomplete information about the power of referral, we gave an extempore judgment formally dismissing the appeal and refusing permission to appeal to the Supreme Court, but making it clear that this was in order that the Supreme Court itself might decide whether to take the case directly or to make a referral first, depending on whether it considered the answer to be acte clair or not.

Having now had the advantage of written submissions from both Mr Robert Palmer for the Home Secretary and Mr Walsh for the appellant, we are satisfied that we have a full power of referral at this level and that it is appropriate that we should exercise it.

Accordingly the judgment given on 16 March 2010 is revoked and replaced by this one. The formal order will be that the appeal be adjourned pending referral to the Court of Justice of the European Union of a question to be formulated by the court on the basis of a draft to be agreed by counsel for the parties.

Because we understand a number of cases to be awaiting the decision in the present case, and because only the essential elements are required to be set out in a referral, counsel’s draft is to reach the court by Friday 26 March.

I agree.

I also agree.