ORDER OF THE PRESIDENT OF THE COURT
8 January 2013 (*)
(Expedited procedure)
In Case C‑400/12,
REQUEST for a preliminary ruling under Article 267 TFEU from the Upper Tribunal (Immigration and Asylum Chamber) London (United Kingdom), made by decision of 24 August 2012, received at the Court on 31 August 2012, in the proceedings
Secretary of State for the Home Department
v
MG,
THE PRESIDENT OF THE COURT,
on the proposal of R. Silva de Lapuerta, Judge‑Rapporteur,
after hearing the Advocate General, M. Wathelet,
makes the following
Order
1 This request for a preliminary ruling concerns the interpretation of Article 28(3)(a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77 and – corrigenda – OJ 2004 L 229, p. 35; OJ 2005 L 30, p. 27; OJ 2005 L 197, p. 34, and OJ 2007 L 204, p. 28).
2 The request has been made in proceedings between the Secretary of State for the Home Department (‘the Secretary of State’) and MG concerning a decision to deport MG from the United Kingdom.
3 The order for reference states that MG is a Portuguese citizen. On 12 April 1998 she entered the United Kingdom with her husband, who is also a Portuguese citizen. MG was employed between May 1998 and March 1999. In March 1999 she gave up work to have her first child, who was born in June 1999. Between 2001 and 2004 MG and her husband had two further children. Until their separation in December 2006, MG was supported financially by her husband. Notwithstanding their separation, MG and her husband remain married.
4 In April 2008 MG’s children were placed in foster care following a report by hospital staff that injuries to one of the children were non‑accidental. On 21 November 2008 a family court judge determined that MG had been responsible for causing the injuries to one of her children. MG was convicted on one count of cruelty and three counts of assault by beating a person under 16 years and sentenced, on 27 August 2009, to a period of 21 months imprisonment.
5 After the conviction of MG, custody of her children was awarded to her husband. While she was in prison MG was granted the right to have supervised contact with her children. However, the local authorities stopped that contact in April 2010 and made an application in August 2010 for contact to be suspended. On 5 July 2011 a family court judge decided to maintain the supervision order, to restrict contact to indirect contact and also to make a prohibited steps order, stating that MG had yet to demonstrate that she could maintain a stable, drug‑free lifestyle. In September 2011 the family court proceedings ended after the children’s father moved to Manchester.
6 On 11 July 2010 MG completed her sentence, but she remained in custody under the immigration legislation until 20 March 2012.
7 The reason for that was that on 11 May 2010, while she was in prison, MG made an application to the Secretary of State for a certificate of permanent residence in the United Kingdom. On 8 July 2010 the Secretary of State refused that application and ordered that MG be deported on grounds of public policy and public security.
8 MG brought an appeal before the First-tier Tribunal (Immigration and Asylum Chamber). On 10 January 2011 that court upheld the appeal, holding that MG had resided in the United Kingdom prior to the deportation order for a period of over 10 years and that the Secretary of State had not demonstrated the existence of imperative grounds of public security. The First-tier Tribunal (Immigration and Asylum Chamber) however found that, in the absence of evidence to show that her husband had been employed or that he had otherwise exercised rights conferred by the FEU Treaty, MG had not proved that she had acquired a right of permanent residence within the meaning of Directive 2004/38.
9 The Secretary of State brought an appeal before the referring court against the decision of the First-tier Tribunal (Immigration and Asylum Chamber).
10 Those are the circumstances in which, hearing the appeal brought by the Secretary of State, the Upper Tribunal (Immigration and Asylum Chamber) London decided to stay the proceedings and to request a preliminary ruling from the Court.
11 In its order for reference, that court requests that the Court of Justice apply an accelerated procedure to the reference for a preliminary ruling.
12 Under Article 105(1) of the Rules of Procedure, at the request of the referring court or tribunal or, exceptionally, of his own motion, the President of the Court may, where the nature of the case requires that it be dealt with within a short time, after hearing the Judge-Rapporteur and the Advocate General, decide that a reference for a preliminary ruling is to be determined pursuant to an expedited procedure derogating from the provisions of those rules.
13 In support of its request, the Upper Tribunal (Immigration and Asylum Chamber) London states that, although, in the present case, MG is no longer detained, there is a clear risk that, in other cases which turn on the answers to the questions raised, both in the United Kingdom and in other Member States, European Union citizens or their family members will face imprisonment and that their imprisonment may be prolonged as a result of these proceedings. The referring court therefore considers that the EU‑wide interest in speedy resolution may be regarded as akin to that acknowledged in the order of the President of the Court of 17 April 2008 in Case C‑127/08 Metock and Others.
14 In that regard, suffice it to recall that the fact that a large number of persons or legal situations are potentially concerned by the decision to be made by the referring court after making a reference to the Court for a preliminary ruling is not capable, as such, of constituting an exceptional circumstance that could justify the application of an expedited procedure (see, inter alia, orders of the President of the Court of 21 September 2006 in Joined Cases C‑283/06 and C‑312/06 KÖGÁZ and Others, paragraph 9; of 25 September 2006 in Case C‑368/06 Cedilac, paragraph 7; of 3 July 2008 in Case C‑201/08 Plantanol, paragraph 10; and of 23 October 2009 in Case C‑240/09 Lesoochranárske zoskupenie, paragraph 11).
15 As regards the order of the President of the Court in Metock and Others, it must be observed that, in that case, the factor that justified the application of an expedited procedure was not that the Court’s reply to the questions referred could affect a large number of people other than the parties to the main proceedings, but that a reply from the Court within a very short period could more swiftly bring an end to the uncertainty which was preventing the persons concerned from leading a normal family life (see order of the President of the Court in Metock and Others, paragraphs 11, 16 and 17).
16 In the present case, as is clear from paragraph 5 of this order, the fact that MG cannot lead a normal family life is a consequence not of the decision which is the subject‑matter of the main proceedings but of her imprisonment and decisions of a family court judge.
17 The request by the referring court that an expedited procedure be applied to this case therefore cannot be granted.
On those grounds, the President of the Court hereby orders:
The request of the Upper Tribunal (Immigration and Asylum Chamber) London that the expedited procedure provided for in Article 105(1) of the Rules of Procedure be applied to Case C‑400/12 is dismissed.
[Signatures]