Kafalah adoption and EU free movement legal challenge

The Court of Justice of the European Union in this case considered the position of children placed under guardianship in the Algerian Kafalah system. The Court decided that such a child can be treated as a family member for the purpose of EU free movement law.

SM, known as Susana in the UK courts, is an eight year old child of Algerian nationality who was abandoned at birth by her biological parents. She was placed, under the Algerian Kafalah system, in the care of a French couple who lived in the UK and who were not able to have children of their own. When the husband returned to the UK to work, his wife stayed in Algeria to look after Susana while seeking entry clearance for her. The UK authorities refused the application. For the next six years Susana and her guardians fought for the UK authorities to accept the validity of their family relationship and so also Susana’s right to enter and live in the UK.

In February 2018 the UK Supreme Court found that concluded it was clear that Susana was an extended family member. However, it referred a further question to the Court of Justice of the European Union: could Susana be treated as a direct descendent of an EU national for the purpose of free movement? The Court of Justice decided that such a child could not be a direct descendent because the Kafalah system, in their view, did not constitute a parent-child relationship. However, the Court did hold such a child could be an ‘extended family member’, which is sufficient to engage free movement rights under EU law as part of the family unit.

However, this case also has much wider importance. CCLC intervened to argue for the primacy of children’s best interests in decision making. The Charter of Fundamental Rights 2000 is accepted to have direct application to EEA rights; however in this judgment the Court held that Article 7 of the EU Charter of Rights, which is the right to a family and private life, has the ‘same meaning and scope’ as the corresponding right in the European Convention on Human Rights (i.e. Article 8 ECHR). The Court also strongly held that the Charter obliges Member States to ‘take into consideration the best interests of the child’: that in cases such as Susana’s the UK is obliged to grant the child entry and residence if the assessment of the child’s best interests is positive.

This is a very positive judgement and CCLC’s Legal Practice Unit were happy to have been able to work with the applicant and the other interveners. The full judgment can be found here.

Judgment of the Court (Grand Chamber) of 26 March 2019 – SM v Entry Clearance Officer, UK Visa Section C 129-18