Supreme Court: Reference to CJEU on Kefalah Children

SM (Algeria) v Entry Clearance Officer, UK Visa Section [2018] UKSC 9 (14 February 2018)

This appeal concerning legal guardianship under the Islamic “kefalah” system provided the Supreme Court the opportunity to refer three questions to the CJEU. The justices also held, as the Court of Appeal had done in Khan [2017] EWCA Civ 1755, that Sala [2016] UKUT 0411 (IAC) was wrongly decided and that an extended family member (EFM) does indeed enjoy a statutory right of appeal against the refusal of a residence card. Pursuant to Algerian law “Susana” was placed into Mr and Mrs M’s legal guardianship. She had been abandoned at birth and parental responsibility was transferred to them by decree. The couple hold French passports and sought entry clearance for Susana as the adopted child of an EEA national under regulation 12(1), or alternatively 12(2) of the Immigration (European Economic Area) Regulations 2006. However, entry clearance was refused on two grounds. Firstly, Algerian guardianship was not recognised as an adoption in UK law as Algeria was not a party to the Hague Convention on Intercountry Adoption 1993 and was not named in the Adoption (Designation of Overseas Adoptions) Order 1973 then in force. Secondly, no application had been made for intercountry adoption under section 83 of the Adoption and Children Act 2002. The First-tier Tribunal upheld the decision.

But the Upper Tribunal allowed Susana’s appeal. FK and MK [2007] UKAIT 00038 precluded Susana from being a direct descendent because she was not legally adopted. She was also not a family member. However, UTJ Allen and DUTJ Bruce were attracted to interpreting EU law purposively and found that Susana was an EFM. Applying section 3(1) of the Human Rights Act 1998, they construed regulation 8 in conformity with article 8 of the ECHR. Laws, Kitchin and Christopher Clarke LJJ allowed the ECO’s onward appeal. They held that Susana was not entitled to entry clearance because under the provisions of the 2006 Regulations she could not be categorised as a family member, EFM or relative of her adoptive parents. In the Court of Appeal’s view the refusal did not breach European or international obligations concerning children’s welfare. The court concluded that the UK’s rules regarding inter-country adoptions are wholly consistent with EU law and are a reasonable and proportionate means of giving effect to international obligations relating to children’s welfare. Laws LJ declined to make a reference to the CJEU.

Legislative Context

At the material time, article 7 of the 2006 Regulations transposed article 2 of the Directive which includes “direct descendants who are under the age of 21 or are dependants”. Moreover, article 8 of the 2006 Regulations transposed article 3 which obliges member states to facilitate, in accordance with their national legislation, the entry and residence of EFMs. Family members have automatic rights of entry and residence whereas other family members (or EFMs) may apply for a residence card, the grant of which is discretionary.

The Supreme Court

Lady Hale and Lords Kerr, Wilson, Reed and Hughes unanimously held that they had jurisdiction to hear the appeal because the outcome in Sala was plainly incorrect. The justices also referred a trio of questions to the CJEU for a preliminary ruling. Lady Hale’s presidential judgment first addressed the substantive issues in Susana’s appeal and then disposed of the jurisdictional issue.

(i) Substantive Issues

After examining article 3.2(a) of the Citizens’ Directive (2004/38/EC), the court found that its transposition into regulation 8 of the 2006 Regulations is inaccurate because it erroneously imposes a requirement for the dependant or member of the household to be a “relative” of the EEA national. She discerned that another error in transposition – warranting that they both live or have lived in the same country outside the UK – had been corrected in November 2012 when the words “in which the EEA national also resides” were deleted from regulation 8(2)(a).

Little doubt existed in Lady Hale’s mind that article 3.2(a) would provide coverage to Susana in the event she did not fall within article 2.2(c). In that regard, she thus distanced herself from Laws LJ’s inflexible stance. She interpreted “family member” generously to include people unrelated by consanguinity or affinity. The expression is “clearly capable” of covering a child such as Susana for whom the EU citizen has parental responsibility pursuant to law of the child’s country of origin. Domestic legislation relating to foreign adoptions is relevant to the examination of whether to exercise the discretion to facilitate entry and residence. Acknowledging that refusal would be justified in principle where the child is the victim of exploitation, abuse or trafficking, or the birth family’s rights have been breached, Lady Hale held:

19. But the fact that the arrangements did not comply in every respect with the stringent requirements of UK adoption law would not be determinative.

In light of the statutory duty owed to children under section 55 of the Borders, Citizenship and Immigration Act 2009 and the obligation owed by member states under article 24.2 of the Charter of Fundamental Rights of the European Union, her Ladyship opined:

20. In a case such as this, the need to safeguard and promote children’s welfare would obviously encompass the need to protect all children from the dangers of exploitation, abuse and trafficking. But the best interests of the individual child must also be a primary consideration.

To that end, the court listed detailed factors such as Susana’s abandonment by her birth family; the prospects of her upbringing in Algeria without kefalah guardianship; whether her guardians underwent a suitability assessment in Algeria; whether all the legal procedures in Algeria had been followed; the reasons behind her guardians’ failure to adhere to the UK’s intercountry adoption procedures; the cultural and religious background of both the child and her guardians and the compatibility of UK adoption with their religious beliefs; the guardians’ commitment to meeting their legal obligations to the child; and the degree of integration of the child into the guardians’ family and household and how close and beneficial their relationships are with one another.

To make the correct evaluation first instance decision-makers and appellate tribunals must remember that the Directive’s purpose is to simplify and strengthen the right of free movement and residence for all EU citizens. Notably, freedom of movement is one of the fundamental freedoms of the internal market and living in separation from family members – or members of the wider family – presents a powerful deterrent to exercising that freedom.

Lady Hale found reason to consider that Susana qualified for automatic rights of entry and residence as a “direct descendant” which includes consanguineous children, grandchildren and other blood descendants in the direct line. The parties agreed that the expression must include those descendants who have been lawfully adopted in accordance with the requirements of the host member state. Yet the court opined that its reach is wider than that. “Direct descendant” is an autonomous term in EU law and it needs to be uniformly interpreted throughout the EU. Four points confirmed this analysis.

First of all, guidance on the Directive’s better transposition and application (Com (2009) 313 final) extends the notion of direct relatives in the descending and ascending lines to adoptive relationships or minors in custody of a permanent legal guardian. The degree of relatedness in unrestricted. Secondly, it was clear from AG Bot’s reasoning in Rahman (C-83/11, EU:C:2012:174) that “direct descendant” is an autonomous term in EU law which must be given a uniform interpretation throughout the EU. Thirdly, AG Wathelet’s opinion in Coman (C-673/16, ECLI:EU:C:2018:2, see here) confirmed the accuracy of that analysis in the context of the ability of same-sex partners to count as spouses. Fourthly, such a uniform interpretation accords with the Directive’s purpose.

The inconsistent recognition of kefalah children as direct descendants among member states erects barriers to free movement for EU citizens with such children. Equally, discrimination arises against persons unable to accept the western concept of adoption, i.e. the complete transfer of a child from one family and lineage to another. Conversely, construing “direct descendant” autonomously was different from construing the expression broadly. It was not acte clair that a child in Susana’s position is not to be regarded as a direct descendant of her guardians under article 2.2(c). In addition to highlighting the problems of exploitation, abuse and trafficking in children, Lady Hale also expressed concern that conferring an automatic right of entry for kefalah children might result in some of them being placed in homes which would have been rejected as unsuitable domestically.

The existing authorities were unclear whether article 2.2 was capable of accommodating a child such as Susana. The Directive’s abuse of rights provisions might be ineffective to prevent a child being the victim of exploitation, abuse or trafficking whether that child was a third country national or a national of another member state. Observing that Susana’s entry clearance matter had been in litigation since 2012, the Supreme Court referred the following question to the CJEU as a matter of urgency:

(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?

(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 inquire, 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?

(ii) Jurisdiction

The justices also held that the decision in Sala is to be deprecated and that Irwin LJ’s reasoning in Khan is to be followed on the interpretation of regulation 26 of the 2006 Regulations. Indeed, the Supreme Court had no doubt that the outcome in Khan is correct “and that Sala should be overruled.” Therefore, Susana enjoyed a right of appeal in relation to both articles 2.2 and 3.2 of the Directive.

As for the reference made to the CJEU in Banger [2017] UKUT 125, Lady Hale said that the justices keenly await the response to the four questions referred, especially the issue regarding the compatibility with the Directive of a national rule precluding an appeal to a court or tribunal against a decision of the executive refusing to issue a residence card to a person claiming to be an EFM.

Irrespective of the ratio of Khan, the question is not moot because the Immigration (European Economic Area) Regulations 2016 have supplanted the 2006 Regulations. Significantly, decisions to refuse to issue an EEA family permit, a registration certificate or a residence card to an EFM have been expressly excluded from the definition of an “EEA decision” in regulation 2(1). Thus, rights of appeal for EFMs still continue to hang in the balance.

Comment

Islamic law prohibits adoption. But it uses the concept of kefalah to promote the welfare of abandoned and orphaned children. Through this judgment, Lady Hale not only sought to emphasise the importance of protecting all children from the dangers of exploitation, abuse and trafficking but also took the opportunity to remind us of her historic statement in ZH (Tanzania) [2011] UKSC 4 that “the best interests of the child must be a primary consideration.” Conversely, the Supreme Court’s reluctance to expand the scope of Khan is problematic because immigration judges are using the justices’ keen interest in Banger – and their intransigence to decide the issue conclusively – as an excuse to hold that EFMs do not have a right of appeal against the refusal of a residence card under the 2016 Regulations.

Tribute must be paid to the late Navtej Singh Ahluwalia who, together with Manjit Gill QC, spearheaded Coram Children’s Legal Centre’s intervention in this appeal. In addition to Susana’s case, by fighting for justice for the underprivileged in other historic cases such as MM (Lebanon) [2017] UKSC 10 (see here), he shaped the practice of human rights in the UK over the past decade.