In response to the reference made by the Supreme Court in SM (Algeria)  UKSC 9 (see here), AG Campos Sánchez-Bordona advised the CJEU to declare that a child in the legal guardianship of an EU citizen under the Algerian kafala system cannot be classed as a “direct descendant” of that citizen within the meaning of article 2(2)(c) of the Directive 2004/38/EC (the Citizens’ Directive). However, following an assessment, the member state in which the EU citizen is resident must facilitate the entry and residence of the child in its territory. The child in the present case, a little girl who Lady Hale had called “Susana”, was placed into the legal guardianship of Mr and Mrs M pursuant to Algerian law. She was abandoned at birth in 2010 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 by finding that she was an extended family member (EFM). However, the Court of Appeal allowed the ECO’s appeal and held that Susana was not entitled to entry 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’s view the refusal did not breach European or international obligations concerning children’s welfare. The court also concluded that the UK’s rules regarding intercountry adoptions are wholly consistent with EU law and they thus constitute a reasonable and proportionate means of giving effect to international obligations relating to children’s welfare. Whereas Laws LJ declined to make a reference to the CJEU, Lady Hale found it necessary to refer some questions and like AG Campos Sánchez-Bordona little doubt existed in her Ladyship’s mind that article 3(2)(a) would provide coverage to Susana as an “other family member” (or EFM) in the event she did not fall within article 2(2)(c).
Moreover, 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. Lady Hale interpreted “family member” generously to include people unrelated by consanguinity or affinity and the expression, as she put it, 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. The Supreme Court found that it was unable to allow the appeal and restore the Upper Tribunal’s order, on the basis that Susana’s case should be considered under article 3(2)(a) if in reality she falls within the definition of “family member” in article 2(2)(c).
In relation to the important issues connected to 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 judged that in a case such as the present a need arises to safeguard and promote children’s welfare and to protect all children from the dangers of exploitation, abuse and trafficking. But it was equally clear to her that the best interests of the individual child must also be a primary consideration.
AG Campos Sánchez-Bordona
The key question – whether the idea of “direct descendant” (which is part of the broader notion of “family members”) in article 2(2)(c) includes a child who is in the permanent legal guardianship of an EU citizen pursuant to kafala – cannot be answered in general terms, in the abstract because kafala is an institution in the family law of some Muslim countries. But is not treated in the same way in all such countries. In developing his full opinion on whether the child (makful) can be considered a “direct descendant” of the legal guardians (the kafils), AG Campos Sánchez-Bordona considered it necessary to examine the status of kafala under Algerian civil law and he also assessed the position of kafala in light of various international instruments, the Strasbourg jurisprudence and also the recognition and enforcement of judgments under EU law. Thereafter, he proceeded to assess the concept of “direct descendant” under the Citizens’ Directive and addressed the questions referred by the Supreme Court. His overarching conclusion was that a child who is merely under the legal guardianship of an EU citizen, under kafala, is not a “direct descendant” of the EU citizen under article 2(2)(c).
(i) Kafala in Algeria
In Algeria, kafala is a form of guardianship under which an adult Muslim (kafil) assumes responsibility for the care, education and protection of a minor (makful) and the kafil acquires legal guardianship temporarily (until the child reaches the age of majority), without creating a relationship of filiation. Significantly, kafala cannot be equated with adoption, which is expressly forbidden in Algeria and kafala is temporary. It can be revoked either on the application of the biological parents, if alive, or at the request of the kafil.
Furthermore, a makful does not become the heir of his or her guardians, but the guardians may, either by gift or legacy, transfer assets not exceeding one third of their estate to the makful. It is also the case that judicial kafala, the type used in the present case, is bound by stricter rules than private kafala.
(ii) International instruments and ECtHR cases
The UNCRC 1989 – under article 20(3) – expressly mentions kafala alongside foster placement, adoption and institutional care as protection for children who are deprived of their family environment (or those children who cannot be allowed to remain in their family environment, as this would undermine their interests). AG Campos Sánchez-Bordona rejected the submission that the mere fact that kafala should be recognised as equivalent to adoption because both are included in the text of article 20 of the UNCRC. He opined that the provision in article 20 “sets out a range of child protection measures that are not necessarily on a par with each other” and therefore accepting the submission meant that “placement in foster care or care homes could be considered equivalent.” He said that, importantly, article 21 of the UNCRC provides specific attention to adoption, which “highlights the special characteristics of this institution as compared with the others.”
Moreover, the 1993 Convention on inter-country adoption makes no reference to kafala. And the Guidelines for the Alternative Care of Children did not support the equivalence of adoption and kafala because read in their entirety they did not warrant a conclusion that kafala is to be equated to adoption. Like article 20 of the linked UNCRC, the Guidelines enumerate many types of protective measures as being appropriate ways to provide a child with a stable family environment.
However, this does not mean that the protective measures listed must have the same legal effects. A comparative reading of the 1993 Hague Convention and the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996 confirmed:
46. … firstly, that adoption is the only form of protection that has merited being made the specific subject of an international instrument and, secondly, that in the case of international adoptions, the arrangements differ from those that apply to other protective measures, such as kafala, rights of custody, guardianship, curatorship, fostering and the administration, conservation or disposal of the child’s property.
The Lagarde Report, an explanatory report on the 1996 Convention containing guidelines to aid its understanding, is clear that “kafala is not an adoption, which would be forbidden by Islamic law, and it produces no effect on the parent-child relationship.” Moreover, the child benefitting from it does not become a member of the family of the kafil and this is the reason why kafala is not covered by the 1993 Convention on intercountry adoption. However, it is a definitely a measure of protection, which falls within the scope of application of the 1993 Convention on the protection of children and co-operation in respect of intercountry adoption.
Next, the legal position of kafala had been duly examined in two pieces of Strasbourg jurisprudence. It was clear from Harroudj v France that none of the contracting states equates kafala with adoption. But in French law and in other jurisdictions, it produces effects that are comparable to those of guardianship, curatorship or placement with a view to adoption. Moreover, out of the 22 contracting states of which a comparative law study has been made none regard kafala established abroad as adoption. In situations where the domestic courts have recognised the effects of kafala granted in a foreign country, they have always treated it as a form of guardianship or curatorship, or as placement with a view to adoption.
The court said that article 8 of the ECHR does not guarantee either the right to found a family or the right to adopt. But this does not exclude the possibility that in certain situations ECHR states may still have a positive obligation to facilitate the formation and development of family ties in cases where the existence of a family relationship with a child has been established. The court found no breach of the right to family life if there is a refusal to equate kafala with full adoption. Its view was based on the fact that French legislation adopts a flexible approach towards the prohibition on adoption in Algerian law and mitigates the effects of that prohibition, based on the objective signs of a child’s integration into French society.
In Chbihi Loudoudi v Belgium the applicability of the concept of the right to family life was interpreted as turning on the presence of “de facto family ties” and on the subject matter of that case the Strasbourg Court held that the existence of a tie based on kafala is no different from family life in its ordinary meaning. It also held that the continued existence of ties to the family of birth did not prevent the existence of a family life with others. Yet the court judged that Belgium’s refusal to equate kafala to adoption did not have the effect of depriving the applicants of the right to recognition of the relationship between them by other routes such as utilising the Belgian institution of unofficial guardianship.
Regulation No 2201/2003 on the recognition and enforcement of judgments in family matters and matters of parental relations does not mention kafala but in light of AG Kokott’s position in an earlier case the regulation can be interpreted in the light of the rules in the 1996 Hague Convention, for which the explanations in the Lagarde Report provide helpful guidelines. Hence, under article 1(2) it is possible for a kafala that has been recognised by the judicial authority of one member state to extend its effects to another member state. However, this is not possible for adoption because it is excluded from the regulation’s scope under article 1(3)(c).
(iii) The Citizens’ Directive
Direct descendants under article 2(2)(c) – who are under the age of 21 or are dependants of the EU citizen – have an automatic right of entry and residence in the ascendants’ member state of residence. Other family members covered by article 3(2)(a), including children, must satisfy certain preconditions and must undergo an evaluation by the authorities of the host member state. Subsequent to that evaluation the host member state’s authorities must in accordance with their national legislation, facilitate entry and residence for such persons. They must undertake an extensive examination of the personal circumstances and justify any denial of entry or residence.
The key point, over which no doubt existed in AG Campos Sánchez-Bordona’s mind, was that the concept of direct descendants used in the directive includes both biological and adoptive children and adoption establishes filiation for all purposes from a legal standpoint. This reasoning was supported by the rules of EU law set out in Directive 2003/86/EC, Directive 2011/95/EU and Regulation (EU) No 604/2013. If kafala could be classed as a form of adoption, a makful, as an adoptive child, could become a “direct descendant” of those taking her into their custody. The Supreme Court had reasoned that the guidance on the better transposition and application (Com (2009) 313 final) of the Citizens’ Directive extends the notion of direct relatives in the descending and ascending lines to adoptive relationships or minors in custody of a permanent legal guardian and the degree of relatedness is unrestricted. AG Campos Sánchez-Bordona was of the view that drawing such a parallel is inconsistent with a strict interpretation of article 2(2)(c) and guidance in the communication does not have the force of law. As he put it:
78. In my view, being in “custody of a permanent legal guardian” does not mean that the child in custody becomes a direct descendant (by adoption) of the guardian. There are various grounds for maintaining that the two concepts are not the same, both in the abstract and in the specific case of SM, as a child subject to the kafala arrangements that apply under Algerian law.
79. From an abstract perspective, the guardianship relationship is not comparable to a parent-child relationship. Furthermore, a parent-child relationship (whether biological or adoptive) can coexist with guardianship awarded to someone other than the (biological or adoptive) parents. As the German Government argues, in order for the two to be treated as the same, it would be essential for there to be complete legal equality.
82. Leaving the Commission Communication to one side, therefore, I believe that the essential feature that separates adoption from kafala is, precisely, the parent-child relationship. While kafala does not create parent-child ties, adoption – even in its weakest form of simple adoption – always does so.
The international instruments examined by AG Campos Sánchez-Bordona which govern both adoption and forms of child protection such as kafala confirmed the same conclusion without ever suggesting that the two are comparable. Also in permitting kafala as a form of guardianship while simultaneously prohibiting adoption, Algerian law itself rejects an equivalence of the two concepts and the persons caring for the child become only its legal guardians and he thus inclined to the view that:
86. … Consequently, however hard one tries, I do not believe it is possible to argue that SM is the direct descendant, as their adopted child, of the people who have become her guardians.
This finding does not preclude the guardians from adopting the child if they are permitted to do so under the law of the country in question after the kafala has been established. Some member states have opted for this solution. AG Campos Sánchez-Bordona found that it would enable a child who has subsequently been adopted to become the direct descendant of the adoptive parents and, as such, to enter and reside in the member state where the adoptive parents are resident.
(iv) Protection of family life
Notably, Lady Hale’s observations do not leave any scope for the ECO to refuse Susana entry and residence in the UK so as to enjoy family life with Mr and Mrs M. Hence, it is possible for a child such as her to be covered by the category of “other family members” if the relevant requirements are satisfied and following completion of the procedure laid down in article 3(2), in which case the host member state must facilitate the child’s entry and residence on its territory in accordance with national legislation, having weighed the protection of family life and the defence of the child’s best interests.
Importantly, AG Campos Sánchez-Bordona said that the closure of the route for direct descendants is not “an obstacle to carrying on family life” – a key right entrenched in the Charter of Fundamental Rights of the European Union – since the alternative route for other family members offered by the directive “does not prevent the child from obtaining actual legal protection of that same family life.” He further explained that:
94. It is true that the automatic recognition in article 2(2) of Directive 2004/38 would pose fewer difficulties. But, in terms of what is important here, if that recognition comes up against the difficulties of interpretation which I have identified (and which, in my view, are insuperable), and at the same time there is a mechanism available to the child such as that in article 3(2) of the directive, I stress that the right to family life is respected.
His position coincided with the two judgments of the ECtHR. In Chbihi Loudoudi v Belgium, citing Harroudj v France, the court said that article 8 does not guarantee the right to found a family or the right to adopt. However, states parties to the ECHR have a positive obligation to enable the formation and development of family ties in certain circumstances. In a situation where the existence of a family tie with a child has been established, the state must act to enable that tie to be developed and to create legal safeguards to enable the child’s integration in his family.
Chbihi Loudoudi presented clear parallels with this case because a legal connection was established under kafala in Morocco but the institution did not exist in Belgium where adoption was sought. The ECtHR held that the refusal of the adoption did not deprive the applicants of recognition of the relationship between them because Belgian legislation offered them another way to provide legal protection for their family life in the form of unofficial guardianship, the purpose of which was very similar to that of kafala and which enabled adults to obtain recognition for their commitment to a child’s care and education.
(v) Child’s best interests
Under article 24(2) of the Charter, protecting the child’s best interests must always be the “primary consideration” in any decisions made by public authorities or private institutions when making orders concerning that child. In the context of the directive, it is possible to ensure the guarantee of that protection if the second route (as an other family member) is followed.
AG Campos Sánchez-Bordona found that in establishing a prior authorisation procedure, the route provides an adequate legal framework to ensure the effective protection of the child within the EU, while simultaneously also reconciling the original objectives of the guardianship arrangements (kafala) with the right to family life.
(vi) Abuse of rights/restricting free movement
The Supreme Court had asked whether articles 27 and 35 of the directive allow entry to be denied to children in guardianship under kafala in the event that they are the victims of exploitation, abuse or trafficking or are at risk of these. The answer was that the measures provided for in the directive (freedom of movement and residence for EU citizens or their family members, or the refusal, termination or withdrawal of any right conferred by the directive) may be applied, respectively, where grounds of public policy, public security or public health exist, and in the event of abuse of rights or fraud. However, AG Campos Sánchez-Bordona did not think that such circumstances arise in Susana’s case and he pointed out that the process of “an extensive examination of the personal circumstances” – under the final part of article 3(2)(a) – can also include an examination of the substantive and procedural circumstances under which custody of the child was granted.
AG Campos Sánchez-Bordona’s views on article 2(2)(c) are quite distinct to the Supreme Court’s more generous position that it was perhaps possible to classify Susana as a “direct descendant” within the meaning of that provision. Lady had noted that Susana’s entry clearance matter had been in litigation since 2012 and there was a need for urgency.
On the other hand, she still had some doubts and she expressed concern that conferring an automatic right of entry for kafala children might result in some of them being placed in domestically unsuitable homes. AG Campos Sánchez-Bordona’s opinion was approved by the CJEU its final judgment (discussed here) and the court also made further important observations in relation to the position of the Charter in the context of a case such as the present one.