SOCIAL SECURITY COMMISSIONER				          CF/3662/99

RULING

1.	I decline to make a reference to the European Court of Justice in this appeal and I defer further consideration of the appeal until the Court gives judgment in Cases C-407/99 P. v. Landeskreditbank Baden-Wurttenberg - Foderbank and C-425/99 A. v. Landeskreditbank Baden-Wurttenberg - Foderbank.  I ask the Secretary of State to make a further submission in the present case within one month of that judgment being given.

2.	I held an oral hearing today at which the claimant was represented by Mr Richard Drabble QC, instructed by the Public Law Project, and the Secretary of State was represented by Mr Nicholas Paines QC and Mr Piers Gardner, instructed by the Solicitor to the Departments of Social Security and Health.  I am grateful to both Mr Drabble and Mr Paines for their helpful, and short, submissions.

3.	The claimant in the present case was an asylum seeker who claimed child benefit on 20 November 1996.  She was awarded child benefit from 6 May 1996 to 6 October 1996 but her claim was disallowed from 7 October 1996 because there came into effect on that day section 146A of the Social Security Contributions and Benefits Act 1996 and regulations made under it.  A tribunal upheld that decision and the claimant now appeals to me.  Mr Drabble accepted that, in the light of the decision of the Court of Appeal in Regina v. Adjudication Officer, ex parte Velasquez (17 March 1999), her appeal could not succeed on domestic law (although he submitted that there was an argument under the European Convention on Human Rights, while conceding that it might not be open to a Commissioner to consider that argument in the light of the Court of Appeal’s decision).  He also accepted that it had been held by the Court of Appeal in Krasniqi v. Chief Adjudication Officer (10 December 1998, to be reported as R(IS) 15/99) that a claimant who had no connection with any European Union Member State other than the United Kingdom could not rely on Regulation (EEC) 1408/71.  However, he submitted that the question determined in Krasniqi was not acte claire and that I should refer that question (“the Krasniqi question”), and the question whether a person’s refugee status was to be determined objectively so that recognition of the status operated retrospectively (“the retrospectivity question”), to the European Court of Justice.  Mr Paines, on the other hand, submitted that it was virtually certain that those questions would be determined in Cases C-407/99 and C-425/99 referred to the Court by the Bundessozialgericht (the German Federal Social Court) on 5 August 1999 and that I should not burden the Court with another reference that would inevitably have to be withdrawn when judgment in those cases was given.  Mr Drabble acknowledged the force of that argument but pointed out that the judgment in those cases would not be given until about a year from now, that nothing is certain in litigation and that the questions arising in the present proceedings might not be answered clearly by the Court in the cases pending before them and that there would be a considerable number of other cases like the present one.  He submitted that I should make a reference in the present case because, if by any chance the decision of the Court in the cases before it was not determinative of this case, a reference would have to be made when that became clear and there would have been an unnecessary delay of a year not only in this case but also in all the other similar cases.

4.	It is well known that the European Court of Justice has a heavy workload and does not welcome unnecessary references.  On the other hand, delay in cases before Commissioners is to be avoided so far as possible and experience shows that many cases before Commissioners are deferred to await decisions that are ultimately not as helpful as hoped so that the deferral turns out to have been largely fruitless.  If I do not make a reference in the present case (and do not simply determine it in accordance with the decisions of the Court of Appeal), I must defer consideration of the case and if the Court does not answer the questions arising in the present case, the delay will have been to no advantage.  It is therefore necessary for me to make a judgment as to how likely it is that the decision of the Court in Cases C-407/99 and C-425/99 will determine the issues arising in the present case.  The more likely that is, the less reason there is for me to refer the questions (and the less appropriate it is for me to determine this case immediately in the light of the decisions of the Court of Appeal).

5.	Mr Paines provided me with the translations, prepared by the Registry of the European Court of Justice, of the orders of the Bundessozialgericht.  He did so pursuant to the rules of the European Court of Justice permitting disclosure to a national court of the official translations of references only for the purpose of explaining to the national court the nature of proceedings pending before the Court.  The good sense of the rule permitting disclosure for that purpose is illustrated by the present case.  The orders of the Bundessozialgericht not only set out the questions referred to the European Court of Justice but also give the reasons for referring the questions.  Without them, I could not have formed a proper view as to the likelihood of the questions arising in the present case being determined by the European Court of Justice in those cases.  As it is, Mr Drabble conceded that it was probable that those questions would be determined by the Court but he submitted that there was a sufficient possibility of that not being so to justify a reference, bearing in mind that it could be withdrawn if it became unnecessary for the Court to consider it.

6.	The orders of the Bundessozialgericht show that the Krasniqi question is raised directly in both C-407/99 and C-425/99.  The retrospectivity question is clearly raised in C-407/99 only if another question, not material to the present case, is answered in the negative and so there is a reasonable possibility that it might not be answered in that case.  In C-425/99, it is not clear from the face of the questions referred that the retrospectivity question arises.  As translated, the third question referred is:

“Does Community law preclude a national rule which makes entitlement to family benefit conditional on the actual grant of a right of residence, even if the refugee has been granted the right to asylum ?”

However, it is clear from the reasons given for the reference that the retrospectivity question does arise.  The Bundessozialgericht observes:

“The EC Court of Justice will have to clarify whether the prohibition of discrimination stands in the way of national rules which make a recognised refugee’s entitlement to a family benefit conditional on possession of a specific residence document which nationals are not required to have.  Regarding entitlement to family benefits of Union citizens and Turkish nationals working in an employed capacity in an EU Member State, the EC Court of Justice has already held that such national rules are contrary to Community law (Case C-85/96 Martinez Sala [1998] ECR I-2691 and Case C-262/96 Surul).  In the event that such national rules are also inoperative in the case of recognised refugees, the question arises as to whether the requirement that recognised refugees be treated equally means that a claim for family benefits even in respect of the period prior to recognition may not be rejected on the ground that there was no adequate residence document up to that point in time.  That question cannot be answered by reference to the judgment in Martinez Sala, since in that case Union citizenship existed from the outset and retroactive effect was therefore not an issue for determination.”  (My emphasis.)

Thus, the Court is asked to answer the third question referred to them by answering the retrospectivity question.

7.	Whether or not it is right to say that it is virtually certain that the European Court of Justice will determine both the Krasniqi question and the retrospectivity question in C-407/99 and C-425/99, I am satisfied that there is a sufficiently high degree of probability that those questions will be determined for it to be inappropriate for me to refer those questions in the present proceedings. The right questions have been asked by the Bundessozialgericht and, barring the unexpected, I can see no reason why the Court should not answer them.  National courts must not contribute to delays in the European Court of Justice by making references that are not likely to serve any useful purpose and there is nothing to be gained by referring questions that are already before the Court.  I shall, instead, defer further consideration of this appeal to await the judgment of the European Court of Justice in those cases.

M. ROWLAND
Commissioner
12 June 2000