|
whilst not being able to find it in the HoL site or anywhere (you'd think there'd be a list of referrals somewhere) i re-read Dias ( http://www.bailii.org/ew/cases/EWCA/Civ/2009/807.html) and quote:
" In McCarthy v Secretary of State for the Home Department <2008> EWCA Civ 641, this court held, on different facts, that the proper meaning of article 16 was as recital 17 to Directive 2004/38 suggests, and that accordingly in order to give rise to the permanent right of residence the five years' legal residence relied upon have to be years of residence "in compliance with the conditions laid down in this Directive". That led this court to hold that a British citizen, with an unqualified right of abode in this country, could not rely on five years' residence here in that capacity to create a permanent right of residence for her non-British husband. On further appeal to the House of Lords, however, that court has referred questions on the proper meaning of article 16 to the European Court of Justice. The questions referred by the House are:
"(1) Is a person of dual Irish and UK nationality who has resided in the UK for her entire life a 'beneficiary' within the meaning of article 3 of Directive 2004/38….?
(2) Has such a person 'resided legally' within the host Member State for the purpose of article 16 of the Directive in circumstances where she was unable to satisfy the requirement of article 7 of Directive 2004/38 ? "
so, yes it is referred.
|
