The European Court of Justice has ruled that whilst children adopted under the Kafala system cannot be treated as direct family members, they are to be treated as ‘other’ family members and that the competent national authorities are to facilitate the entry and residence of such a child.
SM v. Entry Clearance Officer (C-129/18) concerns a young girl who was ‘adopted’ under the Algerian Kafala system by her French ‘adoptive’ parents in 2010. SM was abandoned at birth and welcomed into the loving home of Mr and Mrs M when she was just three months old. From the moment they first ‘adopted’ her, Mr and Mrs M assumed the responsibility as her parents, cared for her and loved her no less than a natural parent would have.
SM’s adoption was not a form recognised by UK law, such as under the 1993 Hague Convention, simply because Mr and Mrs M’s religion, and Algeria as a country, prohibits such adoptions, since it is prohibited under Sharia law. Under the Kafala system, the adoptive parents or guardians are required to make several promises such as raising the child with an Islamic Education and that they must treat and love the child as if they were the child’s natural parents.
Mr & Mrs M were deemed suitable to adopt SM by the Algerian courts and all relevant checks and assessments in accordance with Algerian law had been complied with.
Mr M returned to the UK where he had already been granted permanent residence to resume his career as a chef and his family had planned to join him shortly after. SM applied for an EEA family permit so that she could travel with Mrs M and join Mr M in the UK. This application was refused.
In an appeal to the First Tier Tribunal, SM’s appeal was dismissed after the court took the view that Mr and Mrs M only adopted SM in Algeria because it was easier for them to do so. This was of course not the case and on appeal to the Upper Tribunal, it was held that whilst SM was not a family member of a citizen of the Union within the meaning of regulation 7 of the 2006 Regulations, she was however an ‘extended family member’ of such a citizen within the meaning of regulation 8.
The Entry Clearance Officer brought an appeal against the Upper Tribunal’s decision before the Court of Appeal and by judgment on 4 November 2015, it was upheld that SM was not a ‘direct family member’ for the purposes of Article 2(2)(c) of Directive 2004/38 since she was not adopted in a form recognised by UK Law. However, the Court of Appeal proceeded to also overturn the Upper Tribunal’s finding that she was an ‘other family member’ within the scope of Article 3(2)(a) of that Directive.
Mr and Mrs M had nearly lost all hope and at this point, the family had been forced to live apart for more than three years. Mr M was faced with the dilemma of potentially giving up his exercise of European Treaty Rights and everything he had worked for in the UK so that the family could be together. However, the family faced the reality that Mr M would not have had the same job opportunities outside of the UK and that he needed to stay in the UK so that he could continue to support the family financially. On 4 November 2015, we were therefore instructed to apply for permission to appeal to the Supreme Court in a last bid to have the family reunited.
On 28 April 2016, the Supreme court granted permission to appeal the issues arising under Article 3(2) of the Directive and Regulation 8 of the (EEA) Regulations 2006.
On 14 February 2018, the Supreme Court delivered its judgment and for SM and her family, hope was finally restored. At paragraph 17 of the Supreme Court’s judgment, it confirmed that the Court had little doubt SM would be at the very least be regarded as one of the ‘other’ family members of a citizen of the Union as referred to in Article 3(2)(a) of Directive 2004/38. Regardless of whether or not a child in SM’s situation has an adoptive or biological link to their Union citizen parents/guardians, if there is a parental responsibility under the law of the child’s Country of origin, they could fall within the scope of ‘other’ family member. SM is a dependent and member of Mr and Mrs M’s household and this has never been in dispute.
However, the Supreme Court did not make a finding on whether SM could be a ‘direct descendant’ of a Union Citizen as referred to in Article 2(2)(c) of the Directive and decided to stay the proceedings so that it could refer three questions to the European Court of Justice.
Questions referred to the ECJ
(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 the Directive?
(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 enquire, 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 into the guardianship or custody of that EEA national was such as to give sufficient consideration to the best interests of that child?
In October 2018, we received notification that an oral hearing would be taking place in the Grand Chamber on 4 December 2018. Our Ms Tang and Miss Su travelled to Luxembourg with Mr M and the rest of the team to take part in the last hurdle of a case that had been on going for more than five long years.
On 26 March 2019, the ECJ ruled that:
The concept of a ‘direct descendant’ of a citizen of the Union referred to in Article 2(2)(c) 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 must be interpreted as not including a child who has been placed in the permanent legal guardianship of a citizen of the Union under the Algerian kafala system, because that placement does not create any parent-child relationship between them.
However, it is for the competent national authorities to facilitate the entry and residence of such a child as one of the other family members of a citizen of the Union pursuant to Article 3(2)(a) of that directive, read in the light of Article 7 and Article 24(2) of the Charter of Fundamental Rights of the European Union, by carrying 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. In the event that it is established, following that assessment, that the child and its guardian, who is a citizen of the Union, are called to lead a genuine family life and that that child is dependent on its guardian, the requirements relating to the fundamental right to respect for family life, combined with the obligation to take account of the best interests of the child, demand, in principle, that that child be granted a right of entry and residence in order to enable it to live with its guardian in his or her host Member State.”
Since their answer to question (1) was that a child ‘adopted’ under the Kafala cannot be a direct family member, there was no need for them to answer questions (2) and (3), which would have been relevant only if the Court had ruled otherwise.
Whilst it has been decided that children adopted under Kafala cannot be Direct family members for the purposes of Article 2(2)(c) of the Directive, this decision is nevertheless a momentous leap forward for children such as SM. To date, there have been no channels for children adopted under the kafala system to join their European Union parents/guardians in the UK despite having such a relationship recognised by the law of their country of origin. SM and children like her may not have an automatic right to join their Union Parent/s in the respective Union country but the ECJ very importantly confirmed that the competent National authorities must facilitate their entry as one of the ‘other family’ members pursuant to 3(2)(a) of Directive 2004/38 and that the discretion exercised by each Member State having regard to recital 31 of that Directive must be exercised in the light of and in line with the provisions of the Charter of Fundamental Rights of the European Union (paragraph 64).
At David Tang & Co, we are passionate about our work and are proud to have helped this loving family on their long road towards being reunited. SM is now nearly 9 years old and through the sheer determination of her parents for the family to be together, they are finally in arm’s reach of their goal.
If you or any family member are affected by this judgment, please get in touch to discuss how we can assist.
