SM v Entry Clearance Officer, UK Visa Section (Case C-129/18) Questions referred to the European Court of Justice

by | Feb 26, 2019 | General | 0 comments

Question referred

Reference for a preliminary ruling from the Supreme Court of the United Kingdom (United Kingdom) made on 19 February 2018 — SM v Entry Clearance Officer, UK Visa Section (Case C-129/18) (2018/C 134/23)

Language of the case: English Referring court Supreme Court of the United Kingdom Parties to the main proceedings

Applicant: SM

Defendant: Entry Clearance Officer, UK Visa Section

Interveners: Coram Children’s Legal Centre (CCLC) and Centre for Advice on Individual Rights in Europe (AIRE)

Questions referred

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 ( 1 )?

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 in the guardianship or custody of that EEA national was such as to give sufficient consideration to the best interests of that child?

( 1 ) 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).