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Changing Horses Midstream


Konodyba v Royal Borough of Kensington and Chelsea [2009] EWCA Civ 890 was an appeal against a decision that Dr Konodyba was not entitled to housing assistance as she was subject to immigration control. It turned out to be a cautionary tale about getting rid of your legal advisers at the last minute in order to argue the case a different way.

Dr Konodyba is from Poland, an A8 country. She seems to have worked briefly in a hotel. During this time her child started school. Dr Konodyba made a homelessness claim to Kensington and Chelsea, but this was turned down due to her immigration status. Dr Konodyba argued that she was entitled to reside in the UK as the primary carer of her child on the basis of Bambaust and Article 12 of Regulation 1612/68. Although HHJ Behar in the Wandsworth County Court decided against her, she was given permission to appeal by the Court of Appeal. In his leading judgment in this case Rix LJ quotes what he said when granting permission. In the context of what happened later this is worth repeating:

Although this is treated as a second appeal, it raises an important point on the interrelationship of Community and domestic legislation, and depends on the question of an implied derogation from a Community directive. HH Judge Behar, in his excellent judgment, described it as a “difficult area of the law”, and in another case HH Judge Knight QC came to a different view. I would give permission to appeal on the basis that it raises an important point of law and because there is a reasonable prospect of success for the reasons addressed in the applicant’s skeleton. Because this question must be likely to arise repeatedly, I consider that an element of expedition is suggested.

Clearly this does not suggest that the success of the appeal was a done deal, but it seems that there was not enough encouragement for Dr Konodyba there. At some point in the fortnight before the hearing she disinstructed her solicitors and counsel on the grounds that the submissions on Bambaust were made without her permission, were against her will and were entirely irrelevant. She wanted to argue a different case based on Article 7 of Directive 2004/38/EC. Not only was this not the case that permission to appeal was granted for, but it appeared to be based on a different factual basis. Rix LJ interpreted this as meaning that the present appeal was abandoned and should therefore be dismissed.

Wall and Aikens LLJ agreed.

chief is a barrister in the big city. he specialises in public law, landlord & tenant, football and rock 'n' roll (the last two are only when his clerks aren't watching). he sometimes pops by here, but not as often as he'd like. he will occasionally eschew capital letters. the reasons for this odd affectation are lost in the mists of time.


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