Assiduous Free Movement readers and European law aficionados may remember the case of SM (Algeria) v Entry Clearance Officer [2018] UKSC 9, covered in this previous post. The case has now gone from the Supreme Court to the Court of Justice of the European Union, which has held that although a child who has been placed in the permanent legal guardianship of an EU citizen under the “kafala” system cannot be considered a “direct descendant”, they can be considered an “other family member”. Member states must facilitate their entry and residence in the UK (i.e. grant them residence rights), having carried out a “balanced and reasonable assessment of all the current and relevant circumstances of the case which takes account of the various interests in play and, in particular, of the best interests of the child concerned”.

Background to the decision

As a brief reminder, SM was an Algerian girl who had been adopted by Mr and Mrs M, French citizens lawfully residing in the UK. They became SM’s legal guardians under the kafala system. This is the Islamic equivalent to an adoption, but is not actually recognised as an adoption in UK law.

The UK Supreme Court had to decide whether SM, whose adoption was not recognised in UK law, could be granted entry clearance to the UK under EU law as a family member of an EEA national. The Supreme Court accepted that SM could be considered an “other family member”, but wanted to clarify if she could be considered a “direct descendant”. This mattered because direct descendants have automatic rights of residence in the EU, while “other family members” only have rights of residence if those are recognised by the relevant EU member state.

The Supreme Court didn’t have an answer, and decided to refer the case to the Court of Justice of the European Union for a preliminary ruling. In particular, it asked:

1. Is a child who is in the permanent legal guardianship of a Union citizen or citizens, under “kefalah” or some equivalent arrangement provided for in the law of his or her country of origin, a “direct descendant” within the meaning of article 2.2(c) of Directive 2004/38?

2. Can other provisions in the Directive, in particular articles 27 and 35, be interpreted so as to deny entry to such children if they are the victims of exploitation, abuse or trafficking or are at risk of such?

3. Is a member state entitled to inquire, before recognising a child who is not the consanguineous descendant of the EEA national as a direct descendant under article 2.2(c), into whether the procedures for placing the child in the guardianship or custody of that EEA national was such as to give sufficient consideration to the best interests of that child?

In a judgment of 26 March 2019, the Court of Justice responded.

A child whose adoption is not recognised is not a direct descendant, but is a family member

The Court of Justice found that a child placed under the Algerian kafala system would not fall under the definition of “direct descendant”. The guardianship system did not create a parent-child relationship. Unlike adoption, the placing of a child under kafala does not mean that the child becomes the guardian’s heir. Kafala also comes to an end when the child attains the age of majority, and may be revoked at the request of the biological parents or the guardian.

That said, the child does indeed fall under the definition of “other family members”, meaning that member states have to facilitate their entry and residence.

Protecting children from exploitation, abuse and trafficking

Member states must facilitate family members’ entry and residence. In addition, the court reminds us, Article 8 of the European Convention on Human Rights means that member states must enable a family tie to be developed, and establish legal safeguards that render possible the child’s integration in his family.

In order to comply with these provisions, member states must

…make a balanced and reasonable assessment of all the current and relevant circumstances of the case, taking account of all the interests in play and, in particular, of the best interests of the child concerned…

That assessment must take into consideration, inter alia, the age at which the child was placed under the Algerian kafala system, whether the child has lived with its guardians since its placement under that system, the closeness of the personal relationship which has developed between the child and its guardians and the extent to which the child is dependent on its guardians, inasmuch as they assume parental responsibility and legal and financial responsibility for the child.

In the context of that assessment, it is also necessary to take account of possible tangible and personal risks that the child concerned will be the victim of abuse, exploitation or trafficking. Such risks cannot, however, be assumed in the light of the fact that the procedure for placement under the Algerian kafala system is based on an assessment of the suitability of the adult and of the interests of the child which is less extensive than the procedure carried out in the host Member State for the purposes of an adoption or the placement of a child or in the light of the fact that the procedure provided for in the 1996 Hague Convention has not been applied because that convention was not ratified by the third country concerned. Such facts must, on the contrary, be weighed against the other relevant elements of fact, such as those set out in paragraph 69 above.

Paragraphs 68-70

Of course, how many people benefit from this judgment in the UK will very much depend on when and how Brexit materialises — if it does at all.