The Supreme Court has ruled that an application to refer questions to the Court of Justice of the European Union must be heard as part of the substantive appeal by P.O. and her son, S.O., rather than during their application for an interlocutory injunction against deportation.
The Court directed that the appeal be heard expeditiously by the same panel and said it would hear submissions on time limits for any related matters. It stressed that the case would be dealt with urgently to avoid further delay. The Court did not decide the substantive appeal, the injunction application, or whether a reference to the Court of Justice should ultimately be made.
P.O. and S.O., an infant suing through his mother and next friend, challenged a Ministerial decision refusing to amend or revoke a deportation order. The High Court had refused to quash that decision, and the pair appealed. Their motion before the Supreme Court sought an injunction preventing deportation while the appeal was pending.
At a resumed hearing on 20 October 2014, counsel for the appellants handed in written submissions seeking a reference under Article 267. The judgment says there had been no advance notice to the Court or the respondents. The respondents argued that the appeal did not concern EU law. The Court heard submissions on the reference request but chose to proceed only with the interlocutory application, not the substantive appeal.
The Court said applications for an EU law reference should generally be raised in a timely way, in the appropriate court, with written submissions served early enough for the other side to respond. It warned that a last-minute application may amount to an abuse of process and could be reflected in costs or other sanctions. It also noted that whether a proposed question is necessary for deciding a case may not be clear until the substantive appeal is heard.
In this case, the respondents had filed further submissions on the reference issue with the Court’s permission, but the appellants had not had an opportunity to respond. The Court described the situation as highly unsatisfactory and said the reference request should be considered alongside the full appeal, when its relevance could be assessed.