The Supreme Court considered whether an Algerian child placed in the permanent legal guardianship of French citizens under the kefalah system could enter the United Kingdom as their family member under EU free movement law. Because it was not clear that she was a “direct descendant” with automatic rights, or how far the Directive could guard against exploitation, the Court referred three questions to the Court of Justice of the European Union. It also held that the refusal of entry clearance was appealable.
An Algerian court had placed a child in the permanent guardianship of two French citizens under the kefalah system. The guardians had parental responsibility, but the arrangement did not create a parent–child relationship equivalent in every respect to adoption. The child sought to join her guardian in the UK.
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In May 2012 Susana applied for entry clearance as the adopted child of an EEA national. The Entry Clearance Officer refused because Algeria was not a party to the 1993 Hague Convention and was not listed in the applicable designation order, so the guardianship was not a recognised adoption, and because no application had been made under section 83 of the Adoption and Children Act 2002.
The appeals below
The First-tier Tribunal held that Susana was neither a family member nor an extended family member under the Immigration (European Economic Area) Regulations 2006, and was not adopted under the Immigration Rules. The Upper Tribunal agreed that she was not a family member under regulation 7, but held that she was an extended family member under regulation 8 and remitted the case for the discretion in regulation 12(2) to be considered. The Court of Appeal allowed the Entry Clearance Officer’s appeal. It treated the real question as the meaning of Directive 2004/38/EC. Member States could limit the adoptions recognised for article 2.2(c). Susana had not been adopted in a form recognised by United Kingdom law, so she was not a direct descendant, and article 3.2(a) could not circumvent that limit.
Family members and other family members
Lady Hale, with whom Lord Kerr, Lord Wilson, Lord Reed and Lord Hughes agreed, explained that article 2.2(c) treats direct descendants under 21, or dependants, as family members with rights of entry and residence. Article 3.2(a) requires the host state only to facilitate entry and residence for other family members who are dependants or household members, after an extensive examination, and to justify refusal. Regulation 8 added a requirement that the person be a “relative”, a word absent from the Directive, and the Court doubted that this accurately transposed article 3.2(a).
If the child was outside article 2, the Court considered that her dependency and membership of the guardians’ household brought her within article 3. The entry authority would have to examine the actual family relationship, the child’s best interests and any evidence of risk. The failure to meet every UK requirement for intercountry adoption could not by itself decide the application.
Whether kefalah creates a direct descendant
The Court could not simply restore the Upper Tribunal’s order. If Susana was a direct descendant, her rights were automatic rather than discretionary. The term covers blood descendants and, as was common ground, children lawfully adopted under the host state’s requirements. Commission guidance, however, extends direct relatives to minors in the permanent custody of a legal guardian. Unlike registered partnership, the term does not refer to national law and should receive an autonomous, uniform EU meaning. Differing national treatment of kefalah could obstruct free movement and disadvantage citizens whose religion or culture does not accept adoption as a complete transfer of lineage. An autonomous meaning need not be a broad one.
The Court could not resolve the meaning of direct descendant with sufficient certainty to decide the appeal without a reference. It also sought clarification about the safeguards available if recognition conferred an automatic right of entry.
The Court referred three questions: whether a child in permanent legal guardianship under kefalah, or an equivalent arrangement in her country of origin, is a direct descendant under article 2.2(c); whether articles 27 and 35, or other provisions, can justify refusing entry where the child is, or is at risk of being, a victim of exploitation, abuse or trafficking; and whether, before recognising a non-blood descendant, a Member State may examine whether the placement procedure sufficiently considered the child’s best interests. Given the child’s age and the application made in May 2012, it hoped for an urgent ruling.
Jurisdiction
The Secretary of State argued late that there was no right of appeal. In Sala the Upper Tribunal had held that a discretionary refusal concerning an extended family member was not an “EEA decision” about an entitlement under regulation 2, so regulation 26 gave no appeal. In Khan the Court of Appeal overruled Sala: a decision which concerns an entitlement includes a decision whether to grant one, and a discretion must still be exercised lawfully. The Supreme Court agreed. Article 3.2 imposes duties to facilitate entry, investigate and justify refusal, so some applicants will be entitled to a permit. Appeal jurisdiction cannot turn on fine proportionality judgments, and it would be impractical for article 2.2(c) and article 3.2(a) claims in the same case to follow different procedures. Sala was overruled. The Court noted that later 2016 Regulations expressly remove these refusals from the appeal definition, and declined to comment on the separate question, referred in Banger, of whether judicial review is an effective remedy under the Directive.
Verdict: The Court unanimously confirmed its jurisdiction under the 2006 Regulations and referred three questions to the Court of Justice. The 2018 judgment did not finally determine the child’s entitlement to enter the UK.
Source: SM (Algeria) v Entry Clearance Officer, UK Visa Section [2018] UKSC 9
