In this post, Charlie Coverman of Monckton Chambers discusses the availability of preliminary references to the CJEU from UK national courts in citizens’ rights cases, and the UK courts’ developing practice in this regard.
Brexit has not entirely severed the relationship between UK courts and the Court of Justice of the European Union (“CJEU“). The UK-EU Withdrawal Agreement (“WA”) preserves a limited route for preliminary references in certain circumstances, most notably in cases concerning citizens’ rights. This post explores when and how UK courts can still seek guidance from the CJEU, drawing on recent case law that is beginning to shape the approach to these references.
The Continuing Availability of Preliminary References
Since IP Completion Day (31 December 2020), preliminary references remain available in four limited circumstances.
First, Article 158 WA provides for references concerning the interpretation of Part Two WA, the provisions dealing with citizens’ rights. This is the primary focus of this post.
Second, Article 160 WA allows UK courts to refer questions concerning the interpretation and application of Articles 136 and 138 WA, which deal with the financial settlement between the UK and EU.
Third, the Windsor Framework provides for the continued operation of certain areas of EU law in Northern Ireland after IP Completion Day. Article 12(4) of the Framework confers jurisdiction on the CJEU to give preliminary rulings in relation to such law.
Fourth, the WA’s Protocol on Sovereign Base Areas in Cyprus provides for the continuity, from the end of the transition period, of existing agreements in and around the SBAs.
Article 158 WA
Article 158 WA provides:
“References to the Court of Justice of the European Union concerning Part Two
Where, in a case which commenced at first instance within 8 years from the end of the transition period before a court or tribunal in the United Kingdom, a question is raised concerning the interpretation of Part Two of this Agreement, and where that court or tribunal considers that a decision on that question is necessary to enable it to give judgment in that case, that court or tribunal may request the Court of Justice of the European Union to give a preliminary ruling on that question.
However, where the subject matter of the case before the court or tribunal in the United Kingdom is a decision on an application made pursuant to Article 18(1) or (4) or pursuant to Article 19, a request for a preliminary ruling may be made only where the case commenced at first instance within a period of 8 years from the date from which Article 19 applies.
The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings on requests pursuant to paragraph 1. The legal effects in the United Kingdom of such preliminary rulings shall be the same as the legal effects of preliminary rulings given pursuant to Article 267 TFEU in the Union and its Member States.
In the event that the Joint Committee adopts a decision under Article 132(1), the period of eight years referred to in the second subparagraph of paragraph 1 shall be automatically extended by the corresponding number of months by which the transition period is extended.”
Four key features of Article 158 merit particular attention.
First, the test for referring is whether the court considers that a decision on the question is necessary to enable it to give judgment in the case. This mirrors the test under Article 267 TFEU.
Second, it is time-limited. Cases must be commenced within eight years of the end of the transition period. For most cases, that means by 31 December 2028. For residence status applications under Articles 18 or 19, it is 31 January 2028.
Third, it is discretionary. Unlike the old Article 267(3) TFEU obligation, there is no longer an obligation on final courts to refer. The court only may refer.
Fourth, preliminary rulings are binding on the court or tribunal that made the reference, just as under Article 267. ‘Court or tribunal’ is a term of art in EU law as explained by the CJEU. See, for instance, Case C-54/96 Dorsch Consult [1997] ECR I-4961.
The Case Law on Article 158
There is now a developing body of case law that provides useful guidance on when courts will exercise their discretion to make a reference under Article 158.
The Granted Reference: BZ
In R (on the application of BZ) v Secretary of State for Work and Pensions [2025] EWHC 1814 (Admin), the claimant was a Bangladeshi national who came to the UK as a dependent of her son, an EU citizen with settled status. She suffered domestic abuse, left his home, ceased to be dependent on him, and was subsequently refused universal credit.
The question was whether Article 17(2) WA applies to family members who were dependent on an EU citizen before the end of the transition period but who later ceased to be dependent. In other words, do such family members retain their rights under the WA after ceasing to be dependent? Chamberlain J noted that if the claimant’s interpretation of Article 17(2) was correct, she would be entitled to universal credit while making her application for indefinite leave to remain, but the Secretary of State’s justification for excluding certain family members had been based on the additional cost this would entail. It would be difficult to assess that justification without knowing whether persons in the claimant’s position were entitled to universal credit anyway.
Chamberlain J concluded that a ruling on the proper interpretation of Article 17(2) was necessary to enable him to give judgment in the claims. Neither of the two competing interpretations was markedly more plausible than the other. Although he could in principle decide the point, an appeal would be very likely and the Court of Appeal or Supreme Court might themselves decide to request a preliminary ruling, which would result in considerable delay. The Secretary of State indicated that he was not aware of any others in the same position as the claimant, but Chamberlain J considered it very likely that the claimant was not unique. There was therefore a strong public interest in an authoritative decision on this point as soon as possible. The question to be referred was refined following suggestions from the parties, and the reference was made.
The Refusals: Ali and Fertré
In R (on the application of Ali) v Secretary of State for the Home Department [2024] EWCA Civ 1546., the Court of Appeal refused to make a reference on the question of whether dependency under Article 2(2) of the Citizens’ Rights Directive (as incorporated into the WA) had to be continuously satisfied, or whether it was only assessed at the initial point of application. Green LJ held that the court was confident it could interpret the relevant provisions itself without needing guidance from the CJEU.
Fertré v Vale of White Horse District Council [2025] EWCA Civ 1057 involved an EU citizen with pre-settled status who was refused housing assistance and claimed discrimination under Article 23’s equal treatment provision. At first instance, Jay J considered the issue was not acte clair. However, by the time the case reached the Court of Appeal, Whipple LJ concluded that after the benefit of refined arguments and the High Court’s judgment, she was “not left in any real doubt” about the correct interpretation. The reference was refused.
The Pending Case: Simkova
In Simkova v Secretary of State for Work and Pensions [2024] EWCA Civ 419, the claimant sought to export the child element of Universal Credit for her son living in Slovakia, relying on EU Regulation 883/2004 on the coordination of social security systems. The central issue was whether the constituent elements of universal credit, a composite benefit, could be severed such that the child element could be treated as a discrete “family benefit” falling within the scope of Regulation 883/2004, even though universal credit itself did not fall within the Regulation.
The Court of Appeal dismissed the appeal, holding that nothing in Regulation 883/2004 gave rise to a doctrine of severance whereby the constituent elements of a generalised, composite benefit scheme could be severed from the scheme and treated as discrete, stand-alone benefits. A key subsidiary issue was whether this right related to the WA itself or was merely retained EU law, which determined whether Article 158 applied at all. The Upper Tribunal had considered that because the relevant issue concerned Regulation 883/2004 but not the WA, it had no jurisdiction to refer the matter to the CJEU under Article 158, even though Part 2 of Title III WA was intended to give continued effect to the relevant part of Regulation 883/2004. This formed one of the grounds of appeal, but the Court of Appeal concluded that no reference was needed.
The case was appealed to the Supreme Court, which heard argument in June and July 2025. The Supreme Court’s judgment, when handed down, will provide important clarification on the scope of Article 158 and the circumstances in which references should be made.
Strategic Considerations
In deciding whether to seek a preliminary reference, there are obvious pros and cons to weigh up.
Pros: A reference results in a binding ruling from a court with expertise in interpreting EU law. The authoritative nature of such a ruling provides certainty not just for the claimant but for all those in similar situations. Moreover, in some cases, delay may actually benefit a claimant’s position, for instance, where maintaining the status quo pending a ruling is advantageous.
Cons: References typically take 12-18 months to be resolved, resulting in continued uncertainty and often increased costs. A particular tactical difficulty arises from the inherent tension in seeking a reference: you must present your case as strong and meritorious to win the substantive point, while simultaneously arguing that the law is sufficiently unclear that a judge needs a reference to enable it to be determined.
Practice and Procedure
When making a reference under Article 158, the standard EU procedures apply. This means that Article 267 TFEU, the Statute of the Court of Justice (Protocol No 3 to the TFEU) [2016] OJ C 202/1), the Rules of Procedure ([2012] OJ L 265, Title III), and the Information Note on references from national courts ([2011] OJ C 160/1) all continue to govern the process.
The reference should clearly identify the question(s) of interpretation that the court wishes the CJEU to address. As in BZ, it is common for the parties to make suggestions about the precise formulation of the question, and courts may refine the wording in light of these submissions.
Once a reference is made, the domestic proceedings are typically stayed pending the CJEU’s judgment. After the CJEU provides its ruling, the domestic court will apply that interpretation to the facts of the case before it.
Conclusion
Article 158 WA is a calibrated compromise, preserving a route to the CJEU for a limited time and in limited circumstances while respecting the UK’s departure from the EU. As the case law develops, we are beginning to see how courts will approach the exercise of their discretion to refer.
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