CJEU - Case C‑129/18, SM (Enfant placé sous kafala algérienne), 26 March 2019

Facts:

Mr M and Ms M, French nationals who married in the UK in 2001, travelled to Algeria in 2009 to enquire about becoming guardians of a child under Algerian Kafala system.

Following the birth of S.M., they were assigned parental responsibility under Algerian law. In October 2011, Mr M returned to the UK while Ms M remained in Algeria. In May 2012, S.M. applied for entry clearance for the UK as an adopted child of an EEA national. This application was refused on the basis that guardianship under the Algerian Kafala system is not recognised as lawful adoption under UK law.

In 2013, S.M. brought action at the First Tier Tribunal to challenge this decision. The Tribunal concluded that S.M. did not satisfy the requirements. On appeal, the Upper Tribunal found in favour of the applicant and concluded that S.M. satisfied the meaning of extended family member under regulation 8 of the EEA 2006 regulations. The Court of Appeal overruled this decision in 2015, concluding that S.M. was not a direct descendant and was therefore not within the scope of Article 3 (2) (a) of Directive 2004/38. The Supreme Court referred this matter to the CJEU to determine whether an adopted child under the Algerian Kafala system falls within the meaning of direct descendant under Directive 2004/38. 

Decision & reasoning:

The Court first noted that in order to satisfy the meaning of direct descendant under Art. 2(2)(c) Directive 2004/38, there must be a parent child relationship, which can be biological or adoptive. The provision itself makes no specific reference to Member State law to determine the meaning and scope of ‘direct descendant’. The Court note, nevertheless, that there must be a uniform application of EU law. Similarly, Directive 2004/38 does not contain a definition of direct descendant. It is therefore necessary to consider the wording of the provision, as well as the context in which it occurs and the overall objectives of the Directive. Indeed, the aim of Directive 2004/38 is to facilitate the exercise of primary and individual right to move and reside freely within territory of Member States.

The Court noted that the parent/child relationship must be interpreted broadly to cover biological relationships as well as legal relationships. However, the Court confirmed that the Algerian Kafala system does not create a parent/child relationship and therefore cannot be regarded to fall within meaning of direct descendant. Despite this, it does fall within the meaning of other family members under Article 3(2)(a) Directive 2004/38. Indeed, this provision covers a situation in which a child placed with citizens of the Union under a legal guardianship when they assume responsibility for care. Moreover, the objective of Article 3(2)(a) is to maintain the unity of the family, and any State discretion must be exercised in line with provisions of the EU charter (Article 7 respect for family life) in conjunction with consideration for the best interests of the child provided under Article 3 Committee on the Rights of the Child. The State must therefore make a balanced and reasonable assessment which considers: the age of the child; whether the family have lived together; closeness of the relationship that has been established; risk of exploitation/trafficking; the best interests of the child. 

Outcome:

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.