European Union (Withdrawal) Bill — House of Lords, 2018-03-07
Topic: Immigration
James Hope (Crossbench, Unknown): My Lords, I would like to intervene, following what the noble and learned Lord, Lord Mackay, has said, and referring to the amendment that was moved by the noble Lord, Lord Foulkes of Cumnock. One of the problems I have faced since looking at this Bill, is trying to find hard examples of situations in which the Supreme Court would wish to refer a matter to the European Court of Justice There is a very good example reported in Monday’s Times of a case called SM (Algeria) (Appellant) v Entry Clearance Officer. I will take a moment to explain what the case is about, because it is a good example of citizens’ rights. SM was a little girl, who was placed into the legal guardianship of EU citizens, who happened to be in Algeria. The question concerned her position in coming to the United Kingdom as a member of that family under the Immigration (European Economic Area Regulations) 2006. Merely referring to those regulations reminds us that they would become, as I understand the position, retained EU law under Clause 2 of the Bill The problem arose because the court saw that the regulation had been transposing wording from a directive, which is the normal way in which these things work, but the transposition was inaccurate. This is a situation I have encountered before—it happens from time to time. The question is how to deal with the inaccuracy. The inaccuracy was that while our regulation talked about "family member"—somebody who was put into the legal guardianship of a couple, would normally be regarded as a member of the family—the directive was talking about "direct descendants", and she was not a direct descendant, because she was not actually related, in that sense, to the people who had become her guardians. In order to resolve that problem, the court found it necessary to refer the matter to the European Court of Justice—which it did on Monday. That was under the existing position In resolving the point raised by the noble Lord, Lord Foulkes, it may help to ask how that matter would be handled after exit day. I may be wrong, but my understanding is that it would be for the Supreme Court to resolve the issue itself. The directive would come into EU retained law under Clause 3, so we would have both pieces of legislation to look at. I think that the court, having regard particularly to the way in which we had translated the directive, would give great weight to our own language and regard this little girl as part of the family and therefore entitled to take the benefit of the regulation In explaining the situation, I hope I have not made it too complicated, but it is a good example of citizens’ rights, accorded by our own regulations, giving effect to EU law. There must be very many in the corpus of regulations which forms part of EU law. It comes back to the point made by the noble and learned Lord, Lord Mackay of Clashfern. The Supreme Court looks very carefully at the interests of children and would accord every weight to the normal rules about the priority given to the interests of the child in construing the regulation in a sense that fits with our own language. I should have thought that, after exit day, the question of referring the matter to the European Court of Justice simply would not arise because the court would be capable of resolving the issue itself without being bound by the problem of having to refer something which was not that clear. If I may use the English expression, it was not crystal clear; therefore they were bound to refer. Under the situation after exit day, any superior court will be fully able to resolve the problems of interpretation that arise. Will the Minister confirm that, in this situation, there would be no need for a reference because our courts would be able to deal with it perfectly properly, looking at the language of our own regulations, despite the problem that might have arisen in translating them from the directive into English?