Article 127 – Divisional Court – EEA Single Market judicial review challenge premature

Tue, 07 Feb 2017

Lloyd Jones LJ and Lewis J at a hearing last Friday in the Divisional Court, refused permission to apply for judicial review by two sets of claimants, relating to the UK and exiting the Single Market.  Seeking a Declaration requiring the Secretary of State for Exiting the European Union to seek an Act of Parliament before providing notification under Article 127 of the European Economic Area Agreement 1994, the Court ruled the application was premature, as the mechanism for departure had yet to be decided.

The Court made clear that it was making no findings on the merits of the substantive legal challenge, noting Parliament is a party relevant to any decision to withdraw from the single market (“ … whether and what form the legislation should take is for Parliament and not the Courts”).

The Lead Claimants were Adrian Yalland and Peter Wilding.  No5 Chambers’ Barristers Ramby de Mello and S. Chelvan were instructed by David Tang of David Tang and Co Solicitors for the Second Claimants, W, L T and B, who are either EFTA, EU, a dual-national or non-EEA national who were left in a state of uncertainty, specifically where there would be impact on their fundamental rights exercisable under the Agreement, incorporated into domestic law via the European Economic Area Act 1993.  The case has received both national and international press coverage since the filing of the claim forms on 29 December 2016.  There was no application for costs.

 

Whilst Article 50 notification for leaving the European Union is now subject to an Act of Parliament following the Supreme Court’s landmark ruling in Miller, departure from the European Economic Area Agreement was not part of the EU referendum vote, had not been considered by either the Supreme Court in the Miller case, or is part of the government’s European Union (Notification of Withdrawal) Bill.

Ramby de Mello and S Chelvan are members of the Immigration Law group at No5 Barristers' Chambers.

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