NS v Secretary of State for the Home Department, Court of Appeal

The Commission intervened in this case in the Court of Appeal, about the removal of an Afghan asylum seeker from the UK to Greece under an EU law known as the Dublin Regulation¹. The purpose of the Commission's intervention was to ensure the correct interpretation of the EU Charter of Fundamental Rights and the related UK Protocol when EU law is being applied in the UK.

There has been considerable misunderstanding and misinformation about the effect of the Protocol and the role of the Charter in the UK since the Lisbon Treaty came into force in 2009. This has been compounded by the High Court's judgment, the subject of this appeal, which said that the Charter cannot be relied on against the UK. This is the first case in the higher courts to consider the scope and effect of the Charter in the UK.

On the first day of the hearing in July, in order to resolve some preliminary questions about the interpretation of EU law, the Court decided to refer a number of questions to the Court of Justice of the EU for a preliminary ruling in accordance with Article 267 of the Treaty of the Functioning of the European Union². The proceedings before the Court of Appeal have therefore been put on hold pending the Court of Justices' ruling.

However, the Commission's intervention has already had a measurable effect. Just prior to the hearing, the Secretary of State conceded that 'the fundamental rights set out in the Charter can be relied on as against the United Kingdom and ...that [the High Court] erred in holding otherwise' because the Charter simply restates the rights that already formed part of EU law, and does not create any new rights. At the Commission's request, the Court, in its reasons for making the preliminary reference, acknowledged this concession and confirmed that the purpose of the Protocol was not an opt out from the Charter.

Seven questions have been referred to the Court of Justice, including questions on the scope of the Charter and particularly the effect of the Protocol.  The Court of Appeal has asked the Court of Justice to follow its accelerated procedure given the large number of similar cases pending resolution in the UK (approximately 300) and other EU Member states.

Notes

1. Part of the Common European Asylum System, it allows EU Member States to remove asylum seeks to their first entry point in Europe without determining their asylum claim.
2. If a national court is in any doubt about the interpretation or validity of an EU law it may, and sometimes must, ask the Court of Justice of the EU for advice. This advice is given in the form of a 'preliminary ruling', which is binding on the national court and other EU Member States in similar cases.